Republic of the Philippines

Supreme Court
Manila
The Fundador trademark characterized the brandy products manufactured by
FIRST DIVISION Pedro Domecq, S.A. of Cadiz, Spain.[3] It was duly registered in the Principal Register of

the Philippines Patent Office on July 12, 1968 under Certificate of Registration No.
JUNO BATISTIS, G.R. No. 181571
Petitioner, Present: 15987,[4] for a term of 20 years from November 5, 1970. The registration was renewed for
PUNO, C.J., Chairperson,
CARPIO-MORALES, another 20 years effective November 5, 1990.[5]
LEONARDO-DE CASTRO,
-versus - BERSAMIN, and
VILLARAMA, JR., JJ. Allied Domecq Philippines, Inc., a Philippine corporation exclusively
[6]
Promulgated: authorized to distribute Fundador brandyproducts imported from Spain wholly in finished
PEOPLE OF THE
PHILIPPINES, December 16, 2009 form,[7] initiated this case against Batistis. Upon its request, agents of the National Bureau
Respondent.
of Investigation (NBI) conducted a test-buy in the premises of Batistis, and thereby
x-----------------------------------------------------------------------------------------x
DECISION confirmed that he was actively engaged in the manufacture, sale and distribution of

counterfeit Fundador brandy products.[8] Upon application of the NBI agents based on the
BERSAMIN, J.:
positive results of the test-buy,[9] Judge Antonio M. Eugenio, Jr. of the Manila RTC issued

on December 20, 2001 Search Warrant No. 01-2576,[10] authorizing the search of the
On January 23, 2006, the Regional Trial Court (RTC), Branch 24, premises of Batistis located at No.1664 Onyx St., San Andres Bukid, Sta. Ana, Manila. The
in Manila convicted Juno Batistis for violations of Section 155 (infringement of trademark) search yielded 20 empty Carlos I bottles, 10 empty bottles of Black Label whiskey, two
and Section 168 (unfair competition) of the Intellectual Property Code (Republic Act No. empty bottles of Johnny Walker Swing, an empty bottle of Remy Martin XO, an empty
8293).[1] bottle of Chabot, 241 empty Fundador bottles, 163 boxes of Fundador, a half sack

of Fundador plastic caps, two filled bottles of Fundador brandy, and eight cartons of
On September 13, 2007, the Court of Appeals (CA) affirmed the conviction empty Jose Cuervo bottles.[11]
for infringement of trademark, but reversed the conviction for unfair competition for failure

of the State to prove guilt beyond reasonable doubt.[2] The Office of the City Prosecutor of Manila formally charged Batistis in the RTC

in Manila with two separate offenses, namely, infringement of trademark and unfair
Batistis now appeals via petition for review on certiorari to challenge the CAs competition, through the following information, to wit:
affirmance of his conviction for infringement of trademark.

We affirm the conviction, but we modify the penalty by imposing an indeterminate
sentence, conformably with the Indeterminate Sentence Law and pertinent jurisprudence.
Antecedents
That on or about December 20, 2001, in the City of Manila, Philippines,
the said accused, being then in possession of two hundred forty one
(241) empty Fundador bottles, one hundred sixty three Fundador
boxes, one half (1/2) sack of Fundador plastic caps, and two (2)
Fundador bottles with intention of deceiving and defrauding the public in
general and Allied Domecq Spirits and Wines and Allied Domecq
Philippines, Inc. represented by Atty. Leonardo P. Salvador, a
 corporation duly organized and existing under the laws of the Republic WITH COSTS AGAINST ACCUSED
of the Philippines and engaged in manufacturing of Fundador Brandy
under license of Pedro Domecq, S.A. Cadiz, Spain, and/or copyright SO ORDERED.[14]
owner of the said product, did then and there wilfully, unlawfully and
feloniously reproduce, sell and offer for sale, without prior authority and
consent of said manufacturing company, the accused giving their own
Batistis appealed to the CA, which, on September 13, 2007, affirmed his
low quality product the general appearance and other features of the
original Fundador Brandy of the said manufacturing company which conviction for infringement of trademark, but acquitted him of unfair
would be likely induce the public to believe that the said fake Fundador
Brandy reproduced and/or sold are the real Fundador Brandy produced competition,[15] disposing:
or distributed by the Allied Domecq Spirits and Wines Limited, U.K. and
Allied Domecq Philippines, Inc. to the damage and prejudice of the
latter and the public. WHEREFORE, premises considered, the Appeal of Appellant
JUNO BATISTIS is hereby PARTIALLY GRANTED. The challenged
Contrary to law.[12] Decision is AFFIRMED in so far as the charge against him for Violation
of Section 155 of the Intellectual Property Code is concerned.

However, for failure of the prosecution to prove to a moral

With Batistis pleading not guilty on June 3, 2003,[13] the RTC proceeded to trial. certainty the guilt of the said Appellant, for violation of Section 168 of
the same code a judgment of ACQUITTAL is hereby rendered in his
On January 23, 2006, the RTC found Batistis guilty beyond reasonable doubt
favor.
of infringement of trademark and unfair competition, viz:
SO ORDERED.[16]

ACCORDINGLY, this Court finds the accused JUNO BATISTIS

Guilty Beyond Reasonable Doubt of the crime of Violation of Section
After the CA denied his motion for reconsideration, Batistis brought this appeal.
155 of the Intellectual Property Code and hereby sentences him to
suffer the penalty of imprisonment of TWO (2) YEARS and to pay a fine
of FIFTY THOUSAND (P50,000.00) PESOS.

This Court likewise finds accused JUNO BATISTIS Guilty Issue

Beyond Reasonable Doubt of the crime of Violation of Section 168 (sic)
penalty of imprisonment of TWO (2) YEARS and to pay a fine of FIFTY
THOUSAND (Php50,000.00) PESOS. Batistis contends that:

Accused is further ordered to indemnify the private complainant

THE REGIONAL TRIAL COURT ERRED IN CONVICTING THE
the sum of TWENTY-FIVE (Php25,000.00) PESOS as actual damages.
ACCUSED ON THE BASIS OF THE SELF-SERVING AFFIDAVITS
AND TESTIMONIES OF THE POLICE OFFICERS WHO CONDUCTED
The following items recovered from the premises of the accused
THE RAID ON THE HOUSE OF THE ACCUSED.
and subject of the case are hereby ordered destroyed, pursuant to
existing rules and regulations:

Twenty (20) empty Carlos 1 bottles

Ten (10) Black Label empty bottles He submits that the only direct proofs of his guilt were the self-serving
Two (2) empty bottles of Jhonny (sic) Walker Swing
One(1) empty bottle of Remy Martin XO testimonies of the NBI raiding team; that he was not present during the search; that one of
One (1) empty bottle of Chabot
Two hundred forty-one (241) empty Fundador bottles the NBI raiding agents failed to immediately identify him in court; and that aside from the
One hundred sixty-three (163) Fundador boxes
two bottles of Fundador brandy, the rest of the confiscated items were not found in his
One half (1/2 sack of Fundador plastic caps, and
Two (2) filled Fundador bottles house.
Eight (8) boxes of empty Jose Cuervo bottles
 Ruling
The petition for review has no merit.
1.
Appeal confined only to Questions of Law
Pursuant to Section 3,[17] Rule 122, and Section 9,[18] Rule 45, of the Rules of
Court, the review on appeal of a decision in a criminal case, wherein the CA imposes a
penalty other than death, reclusion perpetua, or life imprisonment, is by petition for review
on certiorari.
A petition for review on certiorari raises only questions of law. Sec. 1, Rule
45, Rules of Court, explicitly so provides, viz:
Section 1. Filing of petition with Supreme Court.A party desiring
to appeal by certiorari from a judgment, final order or resolution of the
Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the
Regional Trial Court or other courts, whenever authorized by law, may
file with the Supreme Court a verified petition for review on certiorari.
The petition may include an application for a writ of preliminary
injunction or other provisional remedies and shall raise only
questions of law, which must be distinctly set forth. The petitioner
may seek the same provisional remedies by verified motion filed in the
same action or proceeding at any time during its pendency.
Accordingly, we reject the appeal for the following reasons:
Firstly: The petition for review replicates Batistis appellant's brief filed in the
CA,[19] a true indication that the errors he submits for our review and reversal are those he
had attributed to the RTC. He thereby rests his appeal on his rehashed arguments that the
CA already discarded. His appeal is, therefore, improper, considering that his petition for
review on certiorari should raise only the errors committed by the CA as the appellate
court, not the errors of the RTC.
Secondly: Batistis assigned errors stated in the petition for review
on certiorari require a re-appreciation and re-examination of the trial evidence. As such,
they raise issues evidentiary and factual in nature. The appeal is dismissible on that basis,
because, one, the petition for review thereby violates the limitation of the issues to only
legal questions, and, two, the Court, not being a trier of facts, will not disturb the factual
findings of the CA, unless they were mistaken, absurd, speculative, conflicting, tainted with
grave abuse of discretion, or contrary to the findings reached by the court of origin.[20]
Whether a question of law or a question of fact is involved is explained in Belgica
v. Belgica:[21]
xxx [t]here exists a question of law when there is doubt on what
the law applicable to a certain set of facts is. Questions of fact, on the
other hand, arise when there is an issue regarding the truth or falsity of
the statement of facts. Questions on whether certain pieces of evidence
should be accorded probative value or whether the proofs presented by
one party are clear, convincing and adequate to establish a proposition
are issues of fact. Such questions are not subject to review by this
Court. As a general rule, we review cases decided by the CA only if
they involve questions of law raised and distinctly set forth in the
petition.[22]
Thirdly: The factual findings of the RTC, its calibration of the testimonies of the
witnesses, and its assessment of their probative weight are given high respect, if not
conclusive effect, unless cogent facts and circumstances of substance, which if
considered, would alter the outcome of the case, were ignored, misconstrued or
misinterpreted.[23]
To accord with the established doctrine of finality and bindingness of the trial
courts findings of fact, we do not disturb such findings of fact of the RTC, particularly after
their affirmance by the CA, for Batistis, as appellant, did not sufficiently prove any
extraordinary circumstance justifying a departure from such doctrine.
2.
 Findings of fact were even correct
label attached to the confiscated products did not reflect the word tunay when he flashed a

black light against the BIR label; (b) the tamper evident ring on the confiscated item did not

contain the word Fundador; and (c) the word Fundador on the label was printed flat with
A review of the decision of the CA, assuming that the appeal is permissible, even
sharper edges, unlike the raised, actually embossed, and finely printed
indicates that both the RTC and the CA correctly appreciated the evidence against the [24]
genuine Fundador trademark.
accused, and correctly applied the pertinent law to their findings of fact.

There is no question, therefore, that Batistis exerted the effort to make the

counterfeit products look genuine to deceive the unwary public into regarding the
Article 155 of the Intellectual Property Code identifies the acts
products as genuine. The buying public would be easy to fall for the counterfeit products
constituting infringement of trademark, viz:
due to their having been given the appearance of the genuine products, particularly with

Section 155. Remedies; Infringement. Any person who shall,
without the consent of the owner of the registered mark:
155.1. Use in commerce any reproduction, counterfeit, copy, or
colorable imitation of a registered mark or the same container or a
dominant feature thereof in connection with the sale, offering for sale,
distribution, advertising of any goods or services including other
preparatory steps necessary to carry out the sale of any goods or
services on or in connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive; or
the difficulty of detecting whether the products were fake or real if the buyers had no
experience and the tools for detection, like black light. He thereby infringed the
registered Fundador trademark by the colorable imitation of it through applying the
dominant features of the trademark on the fake products, particularly the two bottles filled
with Fundador brandy.[25] His acts constituted infringement of trademark as set forth in
Section 155, supra.

155.2. Reproduce, counterfeit, copy or colorably imitate a 3.

registered mark or a dominant feature thereof and apply such Penalty Imposed should be an
reproduction, counterfeit, copy or colorable imitation to labels, signs, Indeterminate Penalty and Fine
prints, packages, wrappers, receptacles or advertisements intended to
be used in commerce upon or in connection with the sale, offering for
sale, distribution, or advertising of goods or services on or in connection
with which such use is likely to cause confusion, or to cause mistake, or Section 170 of the Intellectual Property Code provides the penalty
to deceive, shall be liable in a civil action for infringement by the
registrant for the remedies hereinafter set forth: Provided, That the for infringement of trademark, to wit:
infringement takes place at the moment any of the acts stated in
Subsection 155.1 or this subsection are committed regardless of
whether there is actual sale of goods or services using the infringing Section 170. Penalties. - Independent of the civil and
material. administrative sanctions imposed by law, a criminal penalty of
imprisonment from two (2) years to five (5) years and a fine ranging
from Fifty thousand pesos (P50,000) to Two hundred thousand
pesos(P200,000), shall be imposed on any person who is found guilty
Harvey Tan, Operations Manager of Pedro Domecq, S.A. whose task involved of committing any of the acts mentioned in Section 155, Section 168
and Subsection 169.1. (Arts. 188 and 189, Revised Penal Code).
the detection of counterfeit products in the Philippines, testified that the

seized Fundador brandy, when compared with the genuine product, revealed several

characteristics of counterfeiting, namely: (a) the Bureau of Internal Revenue (BIR) seal

The CA affirmed the decision of the RTC imposing the the penalty of
imprisonment of TWO (2) YEARS and to pay a fine of FIFTY THOUSAND (P50,000.00)
PESOS.
the Revised Penal Code or by special laws, with definite minimum
and maximum terms, as the Court deems proper within the legal
range of the penalty specified by the law must, therefore, be
deemed mandatory.

We rule that the penalty thus fixed was contrary to the Indeterminate Sentence Indeed, the imposition of an indeterminate sentence is mandatory. For instance,

Law,[26] as amended by Act No. 4225. We modify the penalty. in Argoncillo v. Court of Appeals,[29]three persons were prosecuted for and found guilty of

illegal fishing (with the use of explosives) as defined in Section 33, Presidential Decree No.

Section 1 of the Indeterminate Sentence Law, as amended, provides: 704, as amended by Presidential Decree No. 1058, for which the prescribed penalty was

imprisonment from 20 years to life imprisonment. The trial court imposed on each of the

accused a straight penalty of 20 years imprisonment, and the CA affirmed the trial court.
Section 1. Hereafter, in imposing a prison sentence for an
On appeal, however, this Court declared the straight penalty to be erroneous, and modified
offense punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the it by imposing imprisonment ranging from 20 years, as minimum, to 25 years, as
maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said maximum.
Code, and the minimum which shall be within the range of the penalty
next lower to that prescribed by the Code for the offense; and if the
offense is punished by any other law, the court shall sentence the
We are aware that an exception was enunciated in People v. Nang Kay,[30] a
accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum fixed by said law and the prosecution for illegal possession of firearms punished by a special law (that is, Section
minimum shall not be less than the minimum term prescribed by
the same. 2692, Revised Administrative Code, as amended by Commonwealth Act 56 and Republic

Act No. 4) with imprisonment of not less than five years nor more than ten years. There,

the Court sustained the straight penalty of five years and one day imposed by the trial court
The straight penalty the CA imposed was contrary to the Indeterminate Sentence
(Court of First Instance of Rizal) because the application of the Indeterminate Sentence
Law, whose Section 1 requires that the penalty of imprisonment should be an
Law would be unfavorable to the accused by lengthening his prison sentence. Yet, we
indeterminate sentence. According to Spouses Bacar v. Judge de Guzman,Jr.,[27]the
cannot apply the Nang Kay exception herein, even if this case was a prosecution under a
imposition of an indeterminate sentence with maximum and minimum periods in criminal
special law like that in Nang Kay. Firstly, the trial court in Nang Kay could well and lawfully
cases not excepted from the coverage of the Indeterminate Sentence Law pursuant to its
have given the accused the lowest prison sentence of five years because of the mitigating
Section 2[28] is mandatory, viz:
circumstance of his voluntary plea of guilty, but, herein, both the trial court and the CA did

The need for specifying the minimum and maximum periods of not have a similar circumstance to justify the lenity towards the accused. Secondly, the
the indeterminate sentence is to prevent the unnecessary and large number of Fundadorarticles confiscated from his house (namely, 241 empty bottles
excessive deprivation of liberty and to enhance the economic
usefulness of the accused, since he may be exempted from serving the of Fundador, 163 Fundador boxes, a half sack full ofFundador plastic caps, and two filled
entire sentence, depending upon his behavior and his physical, mental,
and moral record. The requirement of imposing an indeterminate bottles of Fundador Brandy) clearly demonstrated that Batistis had been committing a
sentence in all criminal offenses whether punishable by
grave economic offense over a period of time, thereby deserving for him the indeterminate, REYNATO S. PUNO
Chief Justice
rather than the straight and lower, penalty.

[1]
ACCORDINGLY, we affirm the decision dated September 13, 2007 rendered in Rollo, pp. 35-44.
[2]
Id., pp. 11-29.
C.A.-G.R. CR No. 30392 entitled People of the Philippines v. Juno Batistis, but modify the [3]
Records, p. 35.
[4]
Id., p. 71.
penalty to imprisonment ranging from two years, as minimum, to three years, as maximum, [5]
Id., p. 31 (certification of the Chief, Patent/Trademark Registry Division, Intellectual
and a fine of P50,000.00. Property Office).
[6]
Id., pp. 180-184 (Agreement for the Distribution in Philippines of Jerez Wines and
Brandies Domecq).
[7]
Id., p. 186.
[8]
The accused shall pay the costs of suit. Id., pp. 16, 18-19, 20.
[9]
Id., pp. 51-52.
[10]
Id., pp. 49-50.
[11]
Id., pp. 39-40 (return of the search warrant); p. 37 (receipt/inventory of property/item
SO ORDERED.
seized).
[12]
Id., p. 1.
[13]
Id., p. 225.
[14]
LUCAS P. BERSAMIN Id., pp. 419-420.
[15]
Associate Justice Id., p. 28.
[16]
Id., p. 28.
[17]
WE CONCUR: Section 3. How appeal taken.
x x x.
REYNATO S. PUNO (e) Except as provided in the last paragraph of section 13, Rule 124, all other appeals
Chief Justice to the Supreme Court shall be by petition for review on certiorari under Rule 45. (3a)
[18]
Chairperson Sec. 9. Rule applicable to both civil and criminal cases. The mode of appeal prescribed
in this Rule shall be applicable to both civil and criminal cases, except in criminal
cases where the penalty imposed is death, reclusion perpetua or life imprisonment.
(n)
[19]
CA Rollo, pp. 28-37.
[20]
Philip Morris, Inc. v. Fortune Tobacco Corporation, G.R. No. 158589, June 27, 2006,
CONCHITA CARPIO MORALES TERESITA J. LEONARDO-DE CASTRO 493 SCRA 333, 345; Sampayan v. Court of Appeals, G.R. No. 156360, January 14,
Associate Justice Associate Justice 2005, 448 SCRA 220; The Insular Life Assurance Company, Ltd. v. Court of
Appeals, G.R.. No. 126850, April 28, 2004, 428 SCRA 79; Langkaan Realty
Development, Inc. v. United Coconut Planters Bank, G..R. No. 139437, December 8,
2000, 347 SCRA 542, 549.
[21]
G..R. No. 149738, August 28, 2007, 531 SCRA 331.
[22]
Id., p. 336.
MARTIN S. VILLARAMA, JR. [23]
Associate Justice Pelonia v. People, G.R. No. 168997, April 13, 2007, 521 SCRA 207.
[24]
TSN, April 13, 2004, pp. 23-33.
[25]
Exhibits H-8 and H-9.
[26]
CERTIFICATION Act No. 4103.
[27]
A.M. No. RTJ-96-1349, April 18, 1997, 271 SCRA 328.
[28]
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the Section 2. This Act shall not apply to persons convicted of offenses punished with death
above Decision had been reached in consultation before the case was assigned to the penalty or life imprisonment; to those convicted of treason, conspiracy or proposal to
writer of the opinion of the Courts Division. commit treason; to those convicted of misprision of treason, rebellion, sedition or
espionage; to those convicted of piracy; to those who are habitual delinquents; to
those who shall have escaped from confinement or evaded sentence; to those who
 having been granted conditional pardon by the Chief Executive shall have violated the
terms thereof; to those whose maximum term of imprisonment does not exceed one On May 31, 2000, petitioner was charged with Bigamy before the Regional Trial Court
year; nor to those already sentenced by final judgment at the time of approval of this
(RTC) of Pasay City, Branch 117 under the following Information in Criminal Case No. 00-
Act, except as provided in Section 5 hereof. (as amended by Act No. 4225, Aug. 8,
1935) 08-11:
[29]
G.R. No. 118806, July 10, 1998, 292 SCRA 313, 330-331. INFORMATION
[30]
88 Phil. 515, 520 (1951).
The undersigned Assistant City Prosecutor accuses
VICTORIA S. JARILLO of the crime of BIGAMY, committed as follows:
THIRD DIVISION
That on or about the 26th day of November 1979, in Pasay
City, Metro Manila, Philippines and within the jurisdiction of this
G.R. No. 164435 Honorable Court, the above-named accused, Victoria S. Jarillo, being
previously united in lawful marriage with Rafael M. Alocillo, and without
Present: the said marriage having been legally dissolved, did then and there
willfully, unlawfully and feloniously contract a second marriage with
Emmanuel Ebora Santos Uy which marriage was only discovered on
YNARES-SANTIAGO, J., January 12, 1999.
Chairperson,
CHICO-NAZARIO, Contrary to law.
VICTORIA S. JARILLO, VELASCO, JR.,
Petitioner, NACHURA, and
PERALTA, JJ.

Promulgated: On July 14, 2000, petitioner pleaded not guilty during arraignment and, thereafter,

trial proceeded.
- versus - September 29, 2009

The undisputed facts, as accurately summarized by the CA, are as follows.

PEOPLE OF THE PHILIPPINES, On May 24, 1974, Victoria Jarillo and Rafael Alocillo were married in a
Respondent. civil wedding ceremony solemnized by Hon. Monico C. Tanyag, then
Municipal Mayor of Taguig, Rizal (Exhs. A, A-1, H, H-1, H-2, O, O-1, pp.
x--------------------------------------------------x 20-21, TSN dated November 17, 2000).

DECISION On May 4, 1975, Victoria Jarillo and Rafael Alocillo again celebrated
marriage in a church wedding ceremony before Rev. Angel Resultay
in San Carlos City, Pangasinan (pp. 25-26, TSN dated November 17,
PERALTA, J.: 2000). Out of the marital union, appellant begot a daughter, Rachelle J.
Alocillo on October 29, 1975 (Exhs. F, R, R-1).

This resolves the Petition for Review on Certiorari under Rule 45 of the Rules of Court,
praying that the Decision[1] of the Court of Appeals (CA), dated July 21, 2003, and its
Resolution[2] dated July 8, 2004, be reversed and set aside.
Appellant Victoria Jarillo thereafter contracted a subsequent marriage
with Emmanuel Ebora Santos Uy, at the City Court of PasayCity,
Branch 1, before then Hon. Judge Nicanor Cruz on November 26, 1979
(Exhs. D, J, J-1, Q, Q-1, pp. 15-18, TSN dated November 22, 2000).
On April 16, 1995, appellant and Emmanuel Uy exchanged marital vows
anew in a church wedding in Manila (Exh. E).
 In 1999, Emmanuel Uy filed against the appellant Civil Case No. 99-
93582 for annulment of marriage before the Regional Trial Court of previous marriage to Alocillo was still existing at the time of her marriage to Uy. The CA
Manila.
also struck down, for lack of sufficient evidence, petitioners contentions that her marriages
Thereafter, appellant Jarillo was charged with bigamy before the were celebrated without a marriage license, and that Uy had notice of her previous
Regional Trial Court of Pasay City x x x.
marriage as far back as 1978.
xxxx
In the meantime, the RTC of Makati City, Branch 140, rendered a Decision dated
Parenthetically, accused-appellant filed against Alocillo, on October 5,
2000, before the Regional Trial Court of Makati, Civil Case No. 00-1217, March 28, 2003, declaring petitioners 1974 and 1975 marriages to Alocillo null and void ab
for declaration of nullity of their marriage. initio on the ground of Alocillos psychological incapacity.Said decision became final and

On July 9, 2001, the court a quo promulgated the assailed executory on July 9, 2003. In her motion for reconsideration, petitioner invoked said
decision, the dispositive portion of which states:
WHEREFORE, upon the foregoing declaration of nullity as a ground for the reversal of her conviction. However, in its
premises, this court hereby finds accused Victoria
Soriano Jarillo GUILTY beyond reasonable doubt of Resolution dated July 8, 2004, the CA, citing Tenebro v. Court of Appeals,[4] denied
the crime of BIGAMY.
reconsideration and ruled that [t]he subsequent declaration of nullity of her first marriage
Accordingly, said accused is hereby
sentenced to suffer an indeterminate penalty of SIX on the ground of psychological incapacity, while it retroacts to the date of the celebration of
(6) YEARS of prision correccional, as minimum,
to TEN (10) YEARS of prision mayor, as maximum. the marriage insofar as the vinculum between the spouses is concerned, the said marriage

This court makes no pronouncement on the is not without legal consequences, among which is incurring criminal liability for bigamy.[5]
civil aspect of this case, such as the nullity of
accuseds bigamous marriage to Uy and its effect on
their children and their property. This aspect is being Hence, the present petition for review on certiorari under Rule 45 of the Rules of
determined by the Regional Trial Court of Manila in
Civil Case No. 99-93582. Court where petitioner alleges that:

Costs against the accused.

V.1. THE COURT OF APPEALS COMMITTED REVERSIBLE
The motion for reconsideration was likewise denied by the ERROR IN PROCEEDING WITH THE CASE DESPITE THE
same court in that assailed Order dated 2 August 2001.[3] PENDENCY OF A CASE WHICH IS PREJUDICIAL TO THE OUTCOME
OF THIS CASE.

For her defense, petitioner insisted that (1) her 1974 and 1975 marriages to V.2. THE COURT OF APPEALS COMMITTED REVERSIBLE
ERROR IN AFFIRMING THE CONVICTION OF PETITIONER FOR THE
Alocillo were null and void because Alocillo was allegedly still married to a certain Loretta CRIME OF BIGAMY DESPITE THE SUPERVENING PROOF THAT THE
FIRST TWO MARRIAGES OF PETITIONER TO ALOCILLO HAD BEEN
Tillman at the time of the celebration of their marriage; (2) her marriages to both Alocillo
DECLARED BY FINAL JUDGMENT NULL AND VOID AB INITIO.
and Uy were null and void for lack of a valid marriage license; and (3) the action had
V.3. THE COURT OF APPEALS COMMITTED REVERSIBLE
prescribed, since Uy knew about her marriage to Alocillo as far back as 1978. ERROR IN NOT CONSIDERING THAT THERE IS A PENDING
ANNULMENT OF MARRIAGE AT THE REGIONAL TRIAL COURT
On appeal to the CA, petitioners conviction was affirmed in toto. In its Decision BRANCH 38 BETWEEN EMMANUEL SANTOS AND VICTORIA S.
JARILLO.
dated July 21, 2003, the CA held that petitioner committed bigamy when she contracted

marriage with Emmanuel Santos Uy because, at that time, her marriage to Rafael Alocillo V.4. THE COURT OF APPEALS COMMITTED REVERSIBLE
ERROR IN NOT CONSIDERING THAT THE INSTANT CASE OF
had not yet been declared null and void by the court. This being so, the presumption is, her BIGAMY HAD ALREADY PRESCRIBED.
 V.5. THE COURT OF APPEALS COMMITTED REVERSIBLE
ERROR IN NOT CONSIDERING THAT THE MARRIAGE OF VICTORIA
JARILLO AND EMMANUEL SANTOS UY HAS NO VALID MARRIAGE
LICENSE.
V.6. THE COURT OF APPEALS COMMITTED REVERSIBLE
ERROR IN NOT ACQUITTING THE PETITIONER BUT IMPOSED AN
ERRONEOUS PENALTY UNDER THE REVISED PENAL CODE AND
THE INDETERMINATE SENTENCE LAW.
The first, second, third and fifth issues, being closely related, shall be discussed
jointly. It is true that right after the presentation of the prosecution evidence, petitioner
moved for suspension of the proceedings on the ground of the pendency of the petition for
declaration of nullity of petitioners marriages to Alocillo, which, petitioner claimed involved
a prejudicial question. In her appeal, she also asserted that the petition for declaration of
nullity of her marriage to Uy, initiated by the latter, was a ground for suspension of the
proceedings. The RTC denied her motion for suspension, while the CA struck down her
arguments. In Marbella-Bobis v. Bobis,[6] the Court categorically stated that:
x x x as ruled in Landicho v. Relova, he who contracts a second marriage
before the judicial declaration of nullity of the first marriage assumes the
risk of being prosecuted for bigamy, and in such a case the criminal
case may not be suspended on the ground of the pendency of a
civil case for declaration of nullity. x x x
xxxx
x x x The reason is that, without a judicial declaration of its nullity,
the first marriage is presumed to be subsisting. In the case at bar,
respondent was for all legal intents and purposes regarded as a married
man at the time he contracted his second marriage with
petitioner. Against this legal backdrop, any decision in the civil action
for nullity would not erase the fact that respondent entered into a
second marriage during the subsistence of a first marriage. Thus, a
decision in the civil case is not essential to the determination of the
criminal charge. It is, therefore, not a prejudicial question. x x x[7]
The foregoing ruling had been reiterated in Abunado v. People,[8] where it was held thus:
The subsequent judicial declaration of the nullity of the
first marriage was immaterial because prior to the declaration of
nullity, the crime had already been consummated. Moreover,
petitioners assertion would only delay the prosecution of bigamy cases
considering that an accused could simply file a petition to declare his
previous marriage void and invoke the pendency of that action as a
prejudicial question in the criminal case. We cannot allow that.
The outcome of the civil case for annulment of petitioners
marriage to [private complainant] had no bearing upon the
determination of petitioners innocence or guilt in the criminal case
for bigamy, because all that is required for the charge of bigamy to
prosper is that the first marriage be subsisting at the time the
second marriage is contracted.
Thus, under the law, a marriage, even one which is void or
voidable, shall be deemed valid until declared otherwise in a judicial
proceeding. In this case, even if petitioner eventually obtained a
declaration that his first marriage was void ab initio, the point is, both the
first and the second marriage were subsisting before the first marriage
was annulled.[9]
For the very same reasons elucidated in the above-quoted cases, petitioners conviction of
the crime of bigamy must be affirmed. The subsequent judicial declaration of nullity of
petitioners two marriages to Alocillo cannot be considered a valid defense in the crime of
bigamy. The moment petitioner contracted a second marriage without the previous one
having been judicially declared null and void, the crime of bigamy was already
consummated because at the time of the celebration of the second marriage, petitioners
marriage to Alocillo, which had not yet been declared null and void by a court of competent
jurisdiction, was deemed valid and subsisting. Neither would a judicial declaration of the
nullity of petitioners marriage to Uy make any difference.[10] As held in Tenebro, [s]ince a
marriage contracted during the subsistence of a valid marriage is automatically void, the
nullity of this second marriage is not per se an argument for the avoidance of criminal
liability for bigamy. x x x A plain reading of [Article 349 of the Revised Penal Code],
therefore, would indicate that the provision penalizes the mere act of contracting a second
or subsequent marriage during the subsistence of a valid marriage.[11]
Petitioners defense of prescription is likewise doomed to fail.
Under Article 349 of the Revised Penal Code, bigamy is punishable by prision
mayor, which is classified under Article 25 of said Code as an afflictive penalty. Article 90
thereof provides that [c]rimes punishable by other afflictive penalties shall prescribe in
fifteen years, while Article 91 states that [t]he period of prescription shall commence to Finally, petitioner avers that the RTC and the CA imposed an erroneous penalty under the

run from the day on which the crime is discovered by the offended party, the authorities, or Revised Penal Code. Again, petitioner is mistaken.

their agents x x x .

The Indeterminate Sentence Law provides that the accused shall be sentenced to

Petitioner asserts that Uy had known of her previous marriage as far back as an indeterminate penalty, the maximum term of which shall be that which, in view of the

1978; hence, prescription began to run from that time. Note that the party who raises a fact attending circumstances, could be properly imposed under the Revised Penal Code, and

as a matter of defense has the burden of proving it. The defendant or accused is obliged to the minimum of which shall be within the range of the penalty next lower than that

produce evidence in support of its defense; otherwise, failing to establish the same, it prescribed by the Code for the offense, without first considering any modifying
[12]
remains self-serving. Thus, for petitioners defense of prescription to prosper, it was circumstance attendant to the commission of the crime.The Indeterminate Sentence Law

incumbent upon her to adduce evidence that as early as the year 1978, Uy already leaves it entirely within the sound discretion of the court to determine the minimum penalty,

obtained knowledge of her previous marriage. as long as it is anywhere within the range of the penalty next lower without any reference

to the periods into which it might be subdivided. The modifying circumstances are

A close examination of the records of the case reveals that petitioner utterly failed considered only in the imposition of the maximum term of the indeterminate sentence.[16]

to present sufficient evidence to support her allegation. Petitioners testimony that her own

mother told Uy in 1978 that she (petitioner) is already married to Alocillo does not inspire Applying the foregoing rule, it is clear that the penalty imposed on petitioner is

belief, as it is totally unsupported by any corroborating evidence. The trial court correctly proper. Under Article 349 of the Revised Penal Code, the imposable penalty for bigamy

observed that: is prision mayor. The penalty next lower is prision correccional, which ranges from 6

months and 1 day to 6 years. The minimum penalty of six years imposed by the trial court
x x x She did not call to the witness stand her mother the person who
is, therefore, correct as it is still within the duration of prision correccional. There being no
allegedly actually told Uy about her previous marriage to Alocillo. It must
be obvious that without the confirmatory testimony of her mother, the mitigating or aggravating circumstances proven in this case, the prescribed penalty
attribution of the latter of any act which she allegedly did is hearsay.[13]
of prision mayor should be imposed in its medium period, which is from 8 years and 1 day

to 10 years. Again, the trial court correctly imposed a maximum penalty of 10 years.
As ruled in Sermonia v. Court of Appeals,[14] the prescriptive period for the crime
However, for humanitarian purposes, and considering that petitioners marriage to
of bigamy should be counted only from the day on which the said crime was
Alocillo has after all been declared by final judgment[17] to be void ab initio on account of
discovered by the offended party, the authorities or their [agents], as opposed to being
the latters psychological incapacity, by reason of which, petitioner was subjected to
[15]
counted from the date of registration of the bigamous marriage. Since petitioner failed to
manipulative abuse, the Court deems it proper to reduce the penalty imposed by the lower
prove with certainty that the period of prescription began to run as of 1978, her defense is,
courts. Thus, petitioner should be sentenced to suffer an indeterminate penalty of
therefore, ineffectual.
imprisonment from Two (2) years, Four (4) months and One (1) day of prision correccional,

as minimum, to 8 years and 1 day of prision mayor, as maximum.

 I attest that the conclusions in the above Decision had been reached in consultation before
IN VIEW OF THE FOREGOING, the petition is PARTLY GRANTED. The the case was assigned to the writer of the opinion of the Courts Division.
Decision of the Court of Appeals dated July 21, 2003, and its Resolution dated July 8, 2004

are hereby MODIFIED as to the penalty imposed, but AFFIRMED in all other
CONSUELO YNARES-SANTIAGO
respects. Petitioner is sentenced to suffer an indeterminate penalty of imprisonment from Associate Justice
Third Division, Chairperson
Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to
CERTIFICATION
Eight (8) years and One (1) day of prision mayor, as maximum.

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons
Attestation, I certify that the conclusions in the above Decision were reached in
SO ORDERED. consultation before the case was assigned to the writer of the opinion of the Courts
Division.

DIOSDADO M. PERALTA
Associate Justice
REYNATO S. PUNO
Chief Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION
 x ---------------------------------------------------------------------------------------- x
[1]
Penned by Associate Justice Bernardo P. Abesamis, with Associate Justices Jose L. DECISION
Sabio, Jr. and Jose C. Mendoza, concurring; rollo, pp. 8-21.
[2]
Penned by Associate Justice Jose L. Sabio, Jr., with Associate Justices Mariano C. del ABAD, J.:
Castillo and Jose C. Mendoza, concurring; rollo, pp. 22-23.
[3]
Rollo, pp. 9-10.
[4]
467 Phil. 723 (2004).
[5] This case is about a) the need, when invoking self-defense, to prove all that it
CA rollo, p. 404.
[6]
391 Phil. 648 (2000). takes; b) what distinguishes frustrated homicide from attempted homicide; and c) when an
[7]
Id. at 655-657. (Emphasis supplied.) accused who appeals may still apply for probation on remand of the case to the trial court.
[8]
G.R. No. 159218, March 30, 2004, 426 SCRA 562.
[9]
Id. at 567-568. (Emphasis supplied.)
[10]
Abunado v. People, supra note 8; Tenebro v. Court of Appeals, supra note 4, at 752. The Facts and the Case
[11]
Tenebro v. Court of Appeals, supra, at 742.
[12] The public prosecutor of Camarines Sur charged the accused Arnel Colinares
Prudential Guarantee and Assurance, Inc. v. Trans-Asia Shipping Lines, Inc., G.R. No.
151890, June 20, 2006, 491 SCRA 411, 433. (Arnel) with frustrated homicide before the Regional Trial Court (RTC) of San Jose,
[13]
Records, p. 383.
[14]
G.R. No. 109454, June 14, 1994, 233 SCRA 155. Camarines Sur, in Criminal Case T-2213.[1]
[15]
Id. at 161.
[16]
Abunado v. People, supra note 8, at 568.
[17]
See Decision of the Regional Trial Court of Makati City in Civil Case No. 00-1217, Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on June
CA rollo, pp. 343-347. 25, 2000, he and Jesus Paulite (Jesus) went out to buy cigarettes at a nearby store. On
their way, Jesus took a leak by the roadside with Rufino waiting nearby. From nowhere,
EN BANC Arnel sneaked behind and struck Rufino twice on the head with a huge stone, about 15
inches in diameter. Rufino fell unconscious as Jesus fled.
ARNEL COLINARES, G.R. No. 182748
Petitioner,
Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino lying
Present:
CORONA, C.J., by the roadside. Ananias tried to help but someone struck him with something hard on the
CARPIO,
right temple, knocking him out. He later learned that Arnel had hit him.
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION, Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be
- versus - PERALTA,
BERSAMIN, smoking outside his house. He sought the help of a barangay tanod and they brought
DEL CASTILLO, Rufino to the hospital.
ABAD,
VILLARAMA, JR.,
PEREZ, Dr. Albert Belleza issued a Medico-Legal Certificate[2] showing that Rufino suffered two
MENDOZA,
SERENO, lacerated wounds on the forehead, along the hairline area. The doctor testified that these
REYES, and injuries were serious and potentially fatal but Rufino chose to go home after initial
PERLAS-
BERNABE, JJ. treatment.
PEOPLE OF THE PHILIPPINES,
Respondent. Promulgated:
The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-
December 13, 2011 defense. He testified that he was on his way home that evening when he met Rufino,
Jesus, and Ananias who were all quite drunk. Arnel asked Rufino where he supposed the
Mayor of Tigaon was but, rather than reply, Rufino pushed him, causing his fall. Jesus and
Ananias then boxed Arnel several times on the back. Rufino tried to stab Arnel but
missed. The latter picked up a stone and, defending himself, struck Rufino on the head
with it. When Ananias saw this, he charged towards Arnel and tried to stab him with a gaff.
Arnel was able to avoid the attack and hit Ananias with the same stone. Arnel then fled and
hid in his sisters house. On September 4, 2000, he voluntarily surrendered at the Tigaon
Municipal Police Station.
Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party on
the night of the incident. His three companions were all drunk. On his way home,
Diomedes saw the three engaged in heated argument with Arnel.
On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond
reasonable doubt of frustrated homicide and sentenced him to suffer imprisonment from
two years and four months of prision correccional, as minimum, to six years and one day
of prision mayor, as maximum. Since the maximum probationable imprisonment under the
law was only up to six years, Arnel did not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking self-defense and,
alternatively, seeking conviction for the lesser crime of attempted homicide with the
consequent reduction of the penalty imposed on him. The CA entirely affirmed the RTC
decision but deleted the award for lost income in the absence of evidence to support
it.[3] Not satisfied, Arnel comes to this Court on petition for review.
In the course of its deliberation on the case, the Court required Arnel and the
Solicitor General to submit their respective positions on whether or not, assuming Arnel
committed only the lesser crime of attempted homicide with its imposable penalty of
imprisonment of four months of arresto mayor, as minimum, to two years and four months
of prisioncorreccional, as maximum, he could still apply for probation upon remand of the
case to the trial court.
Both complied with Arnel taking the position that he should be entitled to apply for
probation in case the Court metes out a new penalty on him that makes his offense
probationable. The language and spirit of the probation law warrants such a stand. The
Solicitor General, on the other hand, argues that under the Probation Law no application
for probation can be entertained once the accused has perfected his appeal from the
judgment of conviction.
The Issues Presented
The case essentially presents three issues:
1. Whether or not Arnel acted in self-defense when he struck Rufino on the head
with a stone;
2. Assuming he did not act in self-defense, whether or not Arnel is guilty of
frustrated homicide; and
3. Given a finding that Arnel is entitled to conviction for a lower offense and a
reduced probationable penalty, whether or not he may still apply for probation on remand
of the case to the trial court.
The Courts Rulings
One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he
merely acted in self-defense when he hit Rufino back with a stone.
When the accused invokes self-defense, he bears the burden of showing that he
was legally justified in killing the victim or inflicting injury to him. The accused must
establish the elements of self-defense by clear and convincing evidence. When successful,
the otherwise felonious deed would be excused, mainly predicated on the lack of criminal
intent of the accused.[4]
In homicide, whether consummated, frustrated, or attempted, self-defense
requires (1) that the person whom the offender killed or injured committed unlawful
aggression; (2) that the offender employed means that is reasonably necessary to prevent
or repel the unlawful aggression; and (3) that the person defending himself did not act with
sufficient provocation.[5]
If the victim did not commit unlawful aggression against the accused, the latter
has nothing to prevent or repel and the other two requisites of self-defense would have no
basis for being appreciated. Unlawful aggression contemplates an actual, sudden, and
unexpected attack or an imminent danger of such attack. A mere threatening or
intimidating attitude is not enough. The victim must attack the accused with actual physical
force or with a weapon.[6]
Here, the lower courts found that Arnel failed to prove the element of unlawful
aggression. He alone testified that Jesus and Ananias rained fist blows on him and that
Rufino and Ananias tried to stab him. No one corroborated Arnels testimony that it was
Rufino who started it. Arnels only other witness, Diomedes, merely testified that he saw
those involved having a heated argument in the middle of the street. Arnel did not submit
any medical certificate to prove his point that he suffered injuries in the hands of Rufino
and his companions.[7]
In contrast, the three witnessesJesus, Paciano, and Ananiastestified that Arnel
was the aggressor. Although their versions were mottled with inconsistencies, these do not
detract from their core story. The witnesses were one in what Arnel did and when and how
he did it. Compared to Arnels testimony, the prosecutions version is more believable and
consistent with reality, hence deserving credence.[8]
Two. But given that Arnel, the accused, was indeed the aggressor, would he be
liable for frustrated homicide when the wounds he inflicted on Rufino, his victim, were not
fatal and could not have resulted in death as in fact it did not?
The main element of attempted or frustrated homicide is the accuseds intent to
take his victims life. The prosecution has to prove this clearly and convincingly to exclude
every possible doubt regarding homicidal intent.[9] And the intent to kill is often inferred
from, among other things, the means the offender used and the nature, location, and
[10]
number of wounds he inflicted on his victim.
Here, Arnel struck Rufino on the head with a huge stone. The blow was so
forceful that it knocked Rufino out. Considering the great size of his weapon, the impact it
produced, and the location of the wounds that Arnel inflicted on his victim, the Court is
convinced that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty only of attempted, not
frustrated, homicide. In Palaganas v. People,[11] we ruled that when the accused intended
to kill his victim, as shown by his use of a deadly weapon and the wounds he inflicted, but
the victim did not die because of timely medical assistance, the crime is frustrated murder
or frustrated homicide. If the victims wounds are not fatal, the crime is only attempted
murder or attempted homicide.
Thus, the prosecution must establish with certainty the nature, extent, depth, and
severity of the victims wounds. While Dr. Belleza testified that head injuries are always
very serious,[12] he could not categorically say that Rufinos wounds in this case were
fatal. Thus:
Q: Doctor, all the injuries in the head are fatal?
A: No, all traumatic injuries are potentially treated.
Q: But in the case of the victim when you treated him the wounds
actually are not fatal on that very day?
A: I could not say, with the treatment we did, prevent from
becoming fatal. But on that case the patient preferred to
go home at that time.
Q: The findings also indicated in the medical certificate only
refers to the length of the wound not the depth of the
wound?
A: When you say lacerated wound, the entire length of the layer of
scalp.
Q: So you could not find out any abrasion?
A: It is different laceration and abrasion so once the skin is
broken up the label of the frontal lo[b]e, we always call it
lacerated wound, but in that kind of wound, we did not
measure the depth.[13]
Indeed, Rufino had two lacerations on his forehead but there was no indication
that his skull incurred fracture or that he bled internally as a result of the pounding of his
head. The wounds were not so deep, they merely required suturing, and were estimated to
heal in seven or eight days. Dr. Belleza further testified:
Q: So, in the medical certificate the wounds will not require
surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much, we give
antibiotics and antit[e]tanus the problem the contusion
that occurred in the brain.
xxxx
Q: What medical intervention that you undertake?
 A: We give antibiotics, Your Honor, antit[e]tanus and suturing the
wounds.
Q: For how many days did he stay in the hospital?
A: Head injury at least be observed within 24 hours, but some of
them would rather go home and then come back.
Q: So the patient did not stay 24 hours in the hospital?
A: No, Your Honor.
Q: Did he come back to you after 24 hours?
A: I am not sure when he came back for follow-up.[14]
Taken in its entirety, there is a dearth of medical evidence on record to support
the prosecutions claim that Rufino would have died without timely medical
intervention. Thus, the Court finds Arnel liable only for attempted homicide and entitled to
the mitigating circumstance of voluntary surrender.
Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he having
appealed from the judgment of the RTC convicting him for frustrated homicide.
But, the Court finds Arnel guilty only of the lesser crime of attempted homicide
and holds that the maximum of the penalty imposed on him should be lowered to
imprisonment of four months of arresto mayor, as minimum, to two years and four months
of prision correccional, as maximum. With this new penalty, it would be but fair to allow him
the right to apply for probation upon remand of the case to the RTC.
Some in the Court disagrees. They contend that probation is a mere privilege
granted by the state only to qualified convicted offenders. Section 4 of the probation law
(PD 968) provides: That no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction.[15] Since Arnel
appealed his conviction for frustrated homicide, he should be deemed permanently
disqualified from applying for probation.
But, firstly, while it is true that probation is a mere privilege, the point is not that
Arnel has the right to such privilege; he certainly does not have. What he has is the right to
apply for that privilege. The Court finds that his maximum jail term should only be 2 years
and 4 months. If the Court allows him to apply for probation because of the lowered
penalty, it is still up to the trial judge to decide whether or not to grant him the privilege of
probation, taking into account the full circumstances of his case.
Secondly, it is true that under the probation law the accused who appeals from the
judgment of conviction is disqualified from availing himself of the benefits of probation. But,
as it happens, two judgments of conviction have been meted out to Arnel: one, a conviction
for frustrated homicide by the regional trial court, now set aside; and, two, a conviction for
attempted homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinions hard position, it will apply
the probation law on Arnel based on the trial courts annulled judgment against him. He will
not be entitled to probation because of the severe penalty that such judgment imposed on
him. More, the Supreme Courts judgment of conviction for a lesser offense and a lighter
penalty will also have to bend over to the trial courts judgmenteven if this has been found
in error. And, worse, Arnel will now also be made to pay for the trial courts erroneous
judgment with the forfeiture of his right to apply for probation. Ang kabayo ang nagkasala,
ang hagupit ay sa kalabaw (the horse errs, the carabao gets the whip). Where is justice
there?
The dissenting opinion also expresses apprehension that allowing Arnel to apply
for probation would dilute the ruling of this Court in Francisco v. Court of Appeals[16] that
the probation law requires that an accused must not have appealed his conviction before
he can avail himself of probation. But there is a huge difference between Francisco and
this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused
guilty of grave oral defamation and sentenced him to a prison term of one year and one
day to one year and eight months of prision correccional, a clearly probationable
penalty. Probation was his to ask! Still, he chose to appeal, seeking an acquittal, hence
clearly waiving his right to apply for probation. When the acquittal did not come, he wanted
probation. The Court would not of course let him.It served him right that he wanted to save
his cake and eat it too. He certainly could not have both appeal and probation.
The Probation Law, said the Court in Francisco, requires that an accused must
not have appealed his conviction before he can avail himself of probation. This requirement
outlaws the element of speculation on the part of the accusedto wager on the result of his
appealthat when his conviction is finally affirmed on appeal, the moment of truth well-nigh
at hand, and the service of his sentence inevitable, he now applies for probation as an
[17]
escape hatch thus rendering nugatory the appellate courts affirmance of his conviction.
Here, however, Arnel did not appeal from a judgment that would have allowed
him to apply for probation. He did not have a choice between appeal and probation. He
was not in a position to say, By taking this appeal, I choose not to apply for probation. The
stiff penalty that the trial court imposed on him denied him that choice. Thus, a ruling that
would allow Arnel to now seek probation under this Courts greatly diminished penalty will
not dilute the sound ruling in Francisco. It remains that those who will appeal from
judgments of conviction, when they have the option to try for probation, forfeit their right to
apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of correctness of the
penalty imposed on him. He claimed that the evidence at best warranted his conviction
only for attempted, not frustrated, homicide, which crime called for a probationable
penalty. In a way, therefore, Arnel sought from the beginning to bring down the penalty to
the level where the law would allow him to apply for probation.
In a real sense, the Courts finding that Arnel was guilty, not of frustrated
homicide, but only of attempted homicide, is an original conviction that for the first time
imposes on him a probationable penalty. Had the RTC done him right from the start, it
would have found him guilty of the correct offense and imposed on him the right penalty of
two years and four months maximum. This would have afforded Arnel the right to apply for
probation.
The Probation Law never intended to deny an accused his right to probation
through no fault of his. The underlying philosophy of probation is one of liberality towards
the accused. Such philosophy is not served by a harsh and stringent interpretation of the
statutory provisions.[18] As Justice Vicente V. Mendoza said in his dissent in Francisco, the
Probation Law must not be regarded as a mere privilege to be given to the accused only
where it clearly appears he comes within its letter; to do so would be to disregard the
teaching in many cases that the Probation Law should be applied in favor of the accused
[19]
not because it is a criminal law but to achieve its beneficent purpose.
One of those who dissent from this decision points out that allowing Arnel to
apply for probation after he appealed from the trial courts judgment of conviction would not
be consistent with the provision of Section 2 that the probation law should be interpreted to
provide an opportunity for the reformation of a penitent offender. An accused like Arnel
who appeals from a judgment convicting him, it is claimed, shows no penitence.
This may be true if the trial court meted out to Arnel a correct judgment of
conviction. Here, however, it convicted Arnel of the wrong crime, frustrated homicide, that
carried a penalty in excess of 6 years. How can the Court expect him to feel penitent over
a crime, which as the Court now finds, he did not commit? He only committed attempted
homicide with its maximum penalty of 2 years and 4 months.
Ironically, if the Court denies Arnel the right to apply for probation under the
reduced penalty, it would be sending him straight behind bars. It would be robbing him of
the chance to instead undergo reformation as a penitent offender, defeating the very
purpose of the probation law.
At any rate, what is clear is that, had the RTC done what was right and imposed
on Arnel the correct penalty of two years and four months maximum, he would have had
the right to apply for probation. No one could say with certainty that he would have availed
himself of the right had the RTC done right by him. The idea may not even have crossed
his mind precisely since the penalty he got was not probationable.
The question in this case is ultimately one of fairness. Is it fair to deny Arnel the
right to apply for probation when the new penalty that the Court imposes on him is, unlike
the one erroneously imposed by the trial court, subject to probation?
WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the
Decision dated July 31, 2007 of the Court of Appeals in CA-G.R. CR
29639, FINDS petitioner Arnel Colinares GUILTY beyond reasonable doubt of attempted
homicide, and SENTENCES him to suffer an indeterminate penalty from four months
of arresto mayor, as minimum, to two years and four months of prision correccional, as
maximum, and to pay Rufino P. Buena the amount of P20,000.00 as moral damages,
without prejudice to petitioner applying for probation within 15 days from notice that the
MARIA LOURDES P. A. SERENO BIENVENIDO L. REYES
record of the case has been remanded for execution to the Regional Trial Court of San
Associate Justice Associate Justice
Jose, Camarines Sur, in Criminal Case T-2213.

SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
ROBERTO A. ABAD
Associate Justice

WE CONCUR: CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
RENATO C. CORONA the conclusions in the above Decision had been reached in consultation before the case
Chief Justice was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR. Chief Justice
Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION [1]

Associate Justice Associate Justice Records, p. 25.
[2]
Id. at 2.
[3]
Rollo, pp. 109-128. Penned by Associate Justice Rebecca De Guia-Salvador, with
Associate Justices Magdangal M. de Leon and Ricardo R. Rosario concurring.
[4]
DIOSDADO M. PERALTA LUCAS P. BERSAMIN People v. Dagani, G.R. No. 153875, August 16, 2006, 499 SCRA 64, 73-74.
[5]
Associate Justice Associate Justice Oriente v. People, G.R. No. 155094, January 30, 2007, 513 SCRA 348, 359.
[6]
People v. Se, 469 Phil. 763, 770 (2004).
[7]
Records, pp. 245-246 (TSN, May 5, 2004, pp. 28-29).
[8]
People v. Enfectana, 431 Phil. 64, 76 (2002).
[9]
People v. Pagador, 409 Phil. 338, 351 (2001).
[10]
MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR. Rivera v. People, 515 Phil. 824, 832 (2006).
[11]
Associate Justice Associate Justice G.R. No. 165483, September 12, 2006, 501 SCRA 533, 555-556.
[12]
Records, p. 82 (TSN, June 17, 2002, p. 6).
[13]
Id. at 83-84 (id. at 7-8).
[14]
Id. at 84-85 (id. at 8-9).
[15]
Sec. 4, Presidential Decree 968 also known as the Probation Law of 1976,
provides: SEC. 4. Grant of Probation. Subject to the provisions of this Decree, the trial
court may, after it shall have convicted and sentenced a defendant, and upon application
by said defendant within the period for perfecting an appeal, suspend the execution of the
JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA sentence and place the defendant on probation for such period and upon such terms and
Associate Justice Associate Justice conditions as it may deem best; Provided, That no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the judgment of
conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine
only. An application for probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal. (Emphasis supplied)
An order granting or denying probation shall not be appealable.
[16]
313 Phil. 241, 255 (1995).
[17]
Id.
[18]
Yusi v. Honorable Judge Morales, 206 Phil. 734, 740 (1983).
[19]
Francisco v. Court of Appeals, supra note 16, at 273.
G.R. No. 206513, October 20, 2015 - MUSTAPHA DIMAKUTA Y MARUHOM,
Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent. : OCTOBER 2015 -
PHILIPPINE SUPREME COURT JURISPRUDENCE - CHANROBLES VIRTUAL LAW
LIBRARY
G.R. No. 206513, October 20, 2015
The Court is now faced with one of the predicaments I discussed in my Dissenting and
Concurring Opinion in Colinares v. People.1 The question regarding the application of the
Probation Law is again inescapably intertwined with the present petition. Consequently, I
must reiterate my assertions and arguments in Colinares to the case at bar.
In the present controversy, petitioner Mustapha Dimakuta y Maruhom alias Boyet was
indicted for Violation of Section 5 Paragraph (b), Article III of Republic Act (R.A.) No. 7610
or the Special Protection of Children Against Abuse, Exploitation and Discriminatory Act.
The Information reads:
That on or about the 24th day of September 2005, in the City of Las Pias, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, with lewd
designs, did then and there willfully, unlawfully and feloniously commit a lascivious conduct
upon the person of one AAA, who was then a sixteen (16) year old minor, by then and
there embracing her, touching her breast and private part against her will and without her
consent and the act complained of is prejudicial to the physical and psychological
development of the complainant.2ChanRoblesVirtualawlibrary
After trial, the RTC promulgated its Decision3 which convicted petitioner of the crime
charged and sentenced him to suffer an indeterminate penalty of imprisonment ranging
from ten (10) years of prision mayor, as minimum, to seventeen (17) years, four (4) months
and one (1) day of reclusion temporal, as maximum, with the accessory penalty of
perpetual absolute disqualification. In addition, he was directed to pay a fine of P20,000.00,
civil indemnity of P25,000.00, and moral damages of P25,000.00.4
Feeling aggrieved, petitioner elevated the case to the Court of Appeals (CA) arguing,
among other things, that even assuming he committed the acts imputed, still there is no
evidence showing that the same were done without the victim's consent or through force,
duress, intimidation or violence upon her. Surprisingly, when asked to comment on the
appeal, the Office of the Solicitor General (OSG), relying heavily on People v.
Abello,5 opined that petitioner should have been convicted only of Acts of Lasciviousness
under Article 336 of the Revised Penal Code (RPC) in view of the prosecution's failure to
establish that the lascivious acts were attended by force or coercion because the victim
was asleep at the time the alleged acts were committed.
On June 28, 2012, the CA rendered a Decision6 adopting the recommendation of the OSG.
In modifying the RTC Decision, petitioner was found guilty of Acts of Lasciviousness under
Article 336 of the RPC and was sentenced to suffer the indeterminate penalty of six (6)
months of arresto mayor, as minimum, to four (4) years and two (2) months of prision
correctional, as maximum. Likewise, he was ordered to pay P20,000.00 as civil indemnity
and P30,000.00 as moral damages.
Petitioner received a copy of CA Decision on July 6, 2012.7 Instead of further appealing the
case, he filed on July 23, 2012 before the CA a manifestation with motion to allow him to
apply for probation upon remand of the case to the RTC.8Petitioner invoked the case
of Colinares v. People9 which allowed petitioner therein to apply for probation after his
sentence was later reduced on appeal by the Supreme Court.
The CA issued a Resolution on September 3, 2012 denying petitioner's manifestation with
motion.10 It was ruled that Colinares is inapplicable since petitioner therein raised as sole
issue the correctness of the penalty imposed and claimed that the evidence presented
warranted only a conviction for the lesser offense. Instead, the appellate court viewed as
appropriate the case of Lagrosa v. People,11 wherein the application for probation was
denied because petitioners therein put in issue on appeal the merits of their conviction and
did not simply assail the propriety of the penalties imposed.
Petitioner filed a motion for reconsideration,12 but it was denied in a Resolution13dated
March 13, 2013; hence, this petition.
The petition should be denied.
At the outset, tracing the evolution of the present Probation Law is warranted in order to
better understand and apply the wisdom of its framers to cases invoking its application.
In this jurisdiction, the concept of probation was introduced during the American colonial
period.14 For juvenile delinquents, Act No. 320315 was enacted on December 3, 1924. It
was later amended by Act Nos. 3309,16 3559,17 and 3725.18 As to offenders who are
eighteen years old and above, Act No. 422119 was passed by the legislature and took
effect on August 7, 1935. Said Act allowed defendants who are convicted and sentenced
by a Court of First Instance or by the Supreme Court on appeal, except those who are
convicted of offenses enumerated in Section 8 thereof,20 to be placed on probation upon
application after the sentence has become final and before its service has
begun.21 However, We declared in People v. Vera22 that Act No. 4221 is unconstitutional
and void as it constitutes an improper and unlawful delegation of legislative authority to the
provincial boards.
During the martial law period, then President Ferdinand E. Marcos issued Presidential
Decree (P.D.) No. 96823 on July 24, 1976. Originally, P.D. No. 968 allowed the filing of an
application for probation at any time after the defendant had been convicted and
sentenced. Section 4 of which provides:
SEC. 4. Grant of Probation. - Subject to the provisions of this Decree, the court may, after
it shall have convicted and sentenced a defendant and upon application at any
time of said defendant, suspend the execution of said sentence and place the defendant
on probation for such period and upon such terms and conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine
only. An application for probation shall be filed with the trial court, with notice to the
appellate court if an appeal has been taken from the sentence of conviction. The filing of
the application shall be deemed a waiver of the right to appeal, or the automatic withdrawal
of a pending appeal. An order granting or denying probation shall not be appealable.24
Later, the filing of an application for probation pending appeal was still allowed when
Section 4 of P.D. No. 968 was amended by P.D. No. 125725 on December 1, 1977 by
providing that such application may be made after the defendant had been convicted and
sentenced but before he begins to serve his sentence. Thus:
SEC. 4. Grant of Probation. - Subject to the provisions of this Decree, the court may, after
it shall have convicted and sentenced a defendant but before he begins to serve his
sentence and upon his application, suspend the execution of said sentence and place
the defendant on probation for such period and upon such terms and conditions as it may
deem best.
The prosecuting officer concerned shall be notified by the court of the filing of the
application for probation and he may submit his comment on such application within ten
days from receipt of the notification.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine
with subsidiary imprisonment in case of insolvency. An application for probation shall be
filed with the trial court, with notice to the appellate court if an appeal has been taken from
the sentence of conviction. The filing of the application shall be deemed a waiver of the
right to appeal, or the automatic withdrawal of a pending appeal. In the latter case,
however, if the application is filed on or after the date of the judgment of the appellate
court, said application shall be acted upon by the trial court on the basis of the judgment of
the appellate court.
An order granting or denying probation shall not be appealable.26
On October 5, 1985, Section 4 was subsequently amended by P.D. No. 1990.27Henceforth,
the policy has been to allow convicted and sentenced defendant to apply for probation
within the 15-day period for perfecting an appeal. As modified, Section 4 of the Probation
Law now reads:
SEC. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court
may, after it shall have convicted and sentenced a defendant and upon application
by said defendant within the period for perfecting an appeal, suspend the execution of
the sentence and place the defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, that no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the judgment of
conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine
only. An application for probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable.28
The reason for the disallowance may be inferred from the preamble of P.D. No. 1990, thus:
WHEREAS, it has been the sad experience that persons who are convicted of offenses
and who may be entitled to probation still appeal the judgment of conviction even up to the
Supreme Court, only to pursue their application for probation when their appeal is
eventually dismissed;cralawlawlibrary
WHEREAS, the process of criminal investigation, prosecution, conviction and appeal
entails too much time and effort, not to mention the huge expenses of litigation, on the part
of the State;cralawlawlibrary
WHEREAS, the time, effort and expenses of the Government in investigating and
prosecuting accused persons from the lower courts up to the Supreme Court, are
oftentimes rendered nugatory when, after the appellate Court finally affirms the judgment of
conviction, the defendant applies for and is granted probation;cralawlawlibrary
WHEREAS, probation was not intended as an escape hatch and should not be used to
obstruct and delay the administration of justice, but should be availed of at the first
opportunity by offenders who are willing to be reformed and rehabilitated;cralawlawlibrary
WHEREAS, it becomes imperative to remedy the problems abovementioned confronting
our probation system[.]ChanRoblesVirtualawlibrary
Observing the developments in our Probation Law, the Court settled in Llamado v. Court of
Appeals:29
Examination of Section 4, after its amendment by P.D. No. 1257, reveals that it had
established a prolonged but definite period during which an application for probation may
be granted by the trial court. That period was: "After [the trial court] shall have convicted
and sentenced a defendant but before he begins to serve his sentence." Clearly, the cut-off
time - commencement of service of sentence - takes place not only after an appeal has
been taken from the sentence of conviction, but even after judgment has been rendered by
the appellate court and after judgment has become final. Indeed, in this last situation,
Section 4, as amended by P.D. No. 1257 provides that "the application [for probation] shall
be acted upon by the trial court on the basis of the judgment of the appellate court"; for the
appellate court might have increased or reduced the original penalty imposed by the trial
court, x x x
xxxx
In sharp contrast with Section 4 as amended by PD No. 1257, in its present form, Section 4
establishes a much narrower period during which an application for probation may be filed
with the trial court: "after [the trial court] shall have convicted and sentenced a defendant
and - within the period for perfecting an appeal -." As if to provide emphasis, a new proviso
was appended to the first paragraph of Section 4 that expressly prohibits the grant of an
application for probation "if the defendant has perfected an appeal from the judgment of
conviction." It is worthy of note too that Section 4 in its present form has dropped the
phrase which said that the filing of an application for probation means "the
automatic withdrawal of a pending appeal." The deletion is quite logical since an
application for probation can no longer be filed once an appeal is perfected; there can,
therefore, be no pending appeal that would have to be withdrawn.
xxxx
We find ourselves unable to accept the eloquently stated arguments of petitioner's counsel
and the dissenting opinion. We are unable to persuade ourselves that Section 4 as it now
stands, in authorizing the trial court to grant probation "upon application by [the]
defendant within the period for perfecting an appeal" and in reiterating in the proviso that
"no application for probation shall be entertained or granted if the defendant has perfected
an appeal from the judgment of conviction."
did not really mean to refer to the fifteen-day period established, as indicated above, by
B.P. Big. 129, the Interim Rules and Guidelines Implementing B.P. Big. 129 and the 1985
Rules on Criminal Procedure, but rather to some vague and undefined time, i.e., "the
earliest opportunity" to withdraw the defendant's appeal. The whereas clauses invoked by
petitioner did not, of course, refer to the fifteen-day period. There was absolutely no reason
why they should have so referred to that period for the operative words of Section 4
already do refer, in our view, to such fifteen-day period. Whereas clauses do not form part
of a statute, strictly speaking; they are not part of the operative language of the statute.
Nonetheless, whereas clauses may be helpful to the extent they articulate the general
purpose or reason underlying a new enactment, in the present case, an enactment which
drastically but clearly changed the substantive content of Section 4 existing before the
promulgation of P.D. No. 1990. Whereas clauses, however, cannot control the specific
terms of the statute; in the instant case, the whereas clauses of P.D. No. 1990 do not
purport to control or modify the terms of Section 4 as amended. Upon the other hand, the
term "period for perfecting an appeal" used in Section 4 may be seen to furnish
specification for the loose language "first opportunity" employed in the fourth whereas
clause. "Perfection of an appeal" is, of course, a term of art but it is a term of art widely
understood by lawyers and judges and Section 4 of the Probation Law addresses itself
essentially to judges and lawyers. "Perfecting an appeal" has no sensible meaning apart
from the meaning given to those words in our procedural law and so the law-making
agency could only have intended to refer to the meaning of those words in the context of
procedural law.30
In Sable v. People, et al.,31 this Court stated that Section 4 of the Probation Law was
amended precisely to put a stop to the practice of appealing from judgments of conviction
even if the sentence is probationable, for the purpose of securing an acquittal and applying
for the probation only if the accused fails in his bid.32 The Probation Law "expressly
requires that an accused must not have appealed his conviction before he can avail
himself of probation. This outlaws the element of speculation on the part of the accused -
to wager on the result of his appeal -that when his conviction is finally affirmed on appeal,
the moment of truth well nigh at hand and the service of his sentence inevitable, he now
applies for probation as an 'escape hatch,' thus rendering nugatory the appellate court's
affirmance of his conviction."33
Verily, Section 4 of the Probation Law provides that the application for probation must be
filed with the trial court within the 15-day period for perfecting an appeal. The need to file it
within such period is intended to encourage offenders, who are willing to be reformed and
rehabilitated, to avail themselves of probation at the first opportunity.34 If the application for
probation is filed beyond the 15-day period, then the judgment becomes final and
executory and the lower court can no longer act on the application for probation. On the
other hand, if a notice of appeal is perfected, the trial court that rendered the judgment of
conviction is divested of any jurisdiction to act on the case, except the execution of the
judgment when it has become final and executory.
In view of the latest amendment to Section 4 of the Probation Law that "no application for
probation shall be entertained or granted if the defendant has perfected an appeal from the
judgment of conviction," prevailing jurisprudence35treats appeal and probation as mutually
exclusive remedies because the law is unmistakable about it.36 Indeed, the law is very
clear and a contrary interpretation would counter its envisioned mandate. Courts have no
authority to invoke "liberal interpretation" or "the spirit of the law" where the words of the
statute themselves, and as illuminated by the history of that statute, leave no room for
doubt or interpretation.37 To be sure, the remedy of convicted felons who want to avail of
the benefits of probation even after the remedy of an appeal is to go to the Congress and
ask for the amendment of the law. To surmise a converse construal of the provision would
be dangerously encroaching on the power of the legislature to enact laws and is
tantamount to judicial legislation.
With due respect, however, to the ponente and the majority opinion in Colinares38the
application of the Probation Law in the said case deserves a second hard look so as to
correct the mistake in the application of the law in that particular case and in similar cases
which will be filed before the courts and inevitably elevated to Us like this petition.
To refresh, Colinares concluded that since the trial court imposed a penalty beyond what is
allowed by the Probation Law, albeit erroneously, the accused was deprived of his choice
to apply for probation and instead was compelled to appeal the case. The reprehensible
practice intended to be avoided by the law was, therefore, not present when he appealed
the trial court's decision. Taking into account that the accused argued in his appeal that the
evidence presented against him warranted his conviction only for attempted, not frustrated,
homicide, the majority of the Court opined that the accused had purposely sought to bring
down the impossible penalty in order to allow him to apply for probation.
It was obvious then, as it is now, that the accused in Colinares should not have been
allowed the benefit of probation. As I have previously stated and insisted upon, probation is
not a right granted to a convicted offender; it is a special privilege granted by the State to a
penitent qualified offender,39 who does not possess the disqualifications under Section 9 of
P.D. No. 968, as amended.40 Likewise, the Probation Law is not a penal law for it to be
liberally construed to favor the accused.41
In the American law paradigm, probation is considered as an act of clemency and grace,
not a matter of right.42 It is a privilege granted by the State, not a right to which a criminal
defendant is entitled.43 In City of Aberdeen v. Regan,44 it was pronounced that:
The granting of a deferred sentence and probation, following a plea or verdict of guilty, is
a rehabilitative measure and, as such, is not a matter of right but is a matter of grace,
privilege, or clemency granted to the deserving.ChanRoblesVirtualawlibrary
As such, even in the American criminal justice model, probation should be granted only to
the deserving or, in our system, only to qualified "penitent offenders" who are willing to be
reformed and rehabilitated. Corollarily, in this jurisdiction, the wisdom behind the Probation
Law is outlined in its stated purposes, to wit:
(a) promote the correction and rehabilitation of an offender by providing him with
individualized treatment;cralawlawlibrary
(b) provide an opportunity for the reformation of a penitent offender which might be less
probable if he were to serve a prison sentence; and
(c) prevent the commission of offenses.45ChanRoblesVirtualawlibrary
As I have previously indicated in Colinares, if this Court will adopt as jurisprudential
doctrine the opinion that an accused may still be allowed to apply for probation even if he
has filed a notice of appeal, it must be categorically stated that such appeal must be limited
to the following grounds:
1. When the appeal is merely intended for the correction of the penalty imposed by the
lower court, which when corrected would entitle the accused to apply for probation; and
2. When the appeal is merely intended to review the crime for which the accused was
convicted and that the accused should only be liable to the lesser offense which is
necessarily included in the crime for which he was originally convicted and the proper
penalty imposable is within the probationable period.
In both instances, the penalty imposed by the trial court for the crime committed by the
accused is more than six years; hence, the sentence disqualifies the accused from
applying for probation. The accused should then be allowed to file an appeal under the
afore-stated grounds to seek a review of the crime and/or penalty imposed by the trial
court. If, on appeal, the appellate court finds it proper to modify the crime and/or the
penalty imposed, and the penalty finally imposed is within the probationable period, the
accused should still be allowed to apply for probation.
In addition, before an appeal is filed based on the grounds enumerated above, the accused
should first file a motion for reconsideration of the decision of the trial court anchored on
the above-stated grounds and manifest his intent to apply for probation if the motion is
granted. The motion for reconsideration will give the trial court an opportunity to review and
rectify any errors in its judgment, while the manifestation of the accused will immediately
show that he is agreeable to the judgment of conviction and does not intend to appeal from
it, but he only seeks a review of the crime and/or penalty imposed, so that in the event that
the penalty will be modified within the probationable limit, he will immediately apply for
probation. Without such motion for reconsideration, the notice of appeal should be denied
outright.
The notice of appeal should contain the following averments:
(1) that an earlier motion for reconsideration was filed but was denied by the trial
court;cralawlawlibrary
(2) that the appeal is only for reviewing the penalty imposed by the lower court or the
conviction should only be for a lesser crime necessarily included in the crime charged in
the information; and
(3) that the accused-appellant is not seeking acquittal of the conviction.
To note, what Section 4 of the Probation Law prohibits is an appeal from the judgment of
conviction, which involves a review of the merits of the case and the determination of
whether the accused is entitled to acquittal. However, under the recommended grounds for
appeal which were enumerated earlier, the purpose of the appeal is not to assail the
judgment of conviction but to question only the propriety of the sentence, particularly the
penalty imposed or the crime for which the accused was convicted, as the accused intends
to apply for probation upon correction of the penalty or conviction for the lesser offense. If
the CA finds it proper to modify the sentence, and the penalty finally imposed by the
appellate court is within the probationable period, or the crime for which the accused is
eventually convicted imposes a probationable penalty, application for probation after the
case is remanded to the trial court for execution should be allowed.
It is believed that the recommended grounds for appeal do not contravene Section 4 of the
Probation Law, which expressly prohibits only an appeal from the judgment of conviction.
In such instances, the ultimate reason of the accused for filing the appeal based on the
afore-stated grounds is to determine whether he may avail of probation based on the
review by the appellate court of the crime and/or penalty imposed by the trial court.
Allowing the afore-stated grounds for appeal would give an accused the opportunity to
apply for probation if his ground for appeal is found to be meritorious by the appellate
court, thus, serving the purpose of the Probation Law to promote the reformation of a
penitent offender outside of prison.
On the other hand, probation should not be granted to the accused in the following
instances:
1. When the accused is convicted by the trial court of a crime where the penalty imposed is
within the probationable period or a fine, and the accused files a notice of appeal; and
2. When the accused files a notice of appeal which puts the merits of his conviction in
issue, even if there is an alternative prayer for the correction of the penalty imposed by the
trial court or for a conviction to a lesser crime, which is necessarily included in the crime in
which he was convicted where the penalty is within the probationable period.
Both instances violate the spirit and letter of the law, as Section 4 of the Probation Law
prohibits granting an application for probation if an appeal from the sentence of
conviction has been perfected by the accused.
In this case, petitioner appealed the trial court's judgment of conviction before the CA
alleging that it was error on the part of the RTC to have found him guilty of violating Section
5(b), Article III of R.A. No. 7610. He argued that the RTC should not have given much faith
and credence to the testimony of the victim because it was tainted with inconsistencies.
Moreover, he went on to assert that even assuming he committed the acts imputed on him,
still there was no evidence showing that the lascivious acts were committed without
consent or through force, duress, intimidation or violence because the victim at that time
was in deep slumber. It is apparent that petitioner anchored his appeal on a claim of
innocence and/or lack of sufficient evidence to support his conviction of the offense
charged, which is clearly inconsistent with the tenor of the Probation Law that only qualified
penitent offender are allowed to apply for probation. The CA, therefore, did not err in
applying the similar case of Lagrosa v. People46 wherein the protestations of petitioners
therein did not simply assail the propriety of the penalties imposed but meant a profession
of guiltlessness, if not complete innocence.
To be sure, if petitioner intended in the first instance to be entitled to apply for probation he
should have admitted his guilt and buttressed his appeal on a claim that the penalty
imposed by the RTC was erroneous or that he is only guilty of a lesser offense necessarily
included in the crime for which he was originally convicted. Unfortunately for him, he
already perfected his appeal and it is late in the day to avail the benefits of probation
despite the imposition of the CA of a probationable penalty.
As regards the CA Decision convicting petitioner of the crime of Acts of Lasciviousness
under Article 336 of the RPC, such conclusion clearly contravenes the law and existing
jurisprudence.
Petitioner was charged and convicted by the trial court with violation of Section 5(b), Article
III of R.A. No. 7610 based on the complaint of a sixteen (16)-year-old girl for allegedly
molesting her by touching her breast and vagina while she was sleeping. The provision
reads:
SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female,
who for money, profit, or any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are
deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetuashall be
imposed upon the following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conductwith a child
exploited in prostitution or subject to other sexual abuse; Provided, That when the victim is
under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for
lascivious conduct when the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period; x x x (Emphasis supplied)
The elements of sexual abuse are as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected to sexual
abuse.
3. The child, whether male or female, is below 18 years of age.47
Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to other sexual
abuse when he or she indulges in lascivious conduct under the coercion or influence of any
adult.48 This statutory provision must be distinguished from Acts of Lasciviousness under
Articles 336 and 339 of the RPC. As defined in Article 336 of the RPC, Acts of
Lasciviousness has the following elements:
(1) That the offender commits any act of lasciviousness or lewdness;cralawlawlibrary
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age; and
(3) That the offended party is another person of either sex.49
Article 339 of the RPC likewise punishes acts of lasciviousness committed with
the consent of the offended party if done by the same persons and under the same
circumstances mentioned in Articles 337 and 338 of the RPC, to wit:
1. if committed against a virgin over twelve years and under eighteen years of age by
any person in public authority, priest, home-servant, domestic, guardian, teacher, or any
person who, in any capacity, shall be entrusted with the education or custody of the
woman; or
2. if committed by means of deceit against a woman who is single or a widow of good
reputation, over twelve but under eighteen years of age.
Therefore, if the victim of the lascivious acts or conduct is over 12 years of age and under
eighteen (18) years of age, the accused shall be liable for:
1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim is
a virgin and consents to the lascivious acts through abuse of confidence or when the
victim is single or a widow of good reputation and consents to the lascivious acts
through deceit, or;cralawlawlibrary
2. Acts of lasciviousness under Art. 336 if the act of lasciviousness is not covered by
lascivious conduct as defined in R.A. No. 7610. In case the acts of lasciviousness is
covered by lascivious conduct under R.A. No. 7610 and it is done through coercion or
influence, which establishes absence or lack of consent, then Art. 336 of the RPC is no
longer applicable
3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on the part of the
victim to the lascivious conduct, which was done through the employment of coercion or
influence. The offender may likewise be liable for sexual abuse under R.A. No. 7610 if the
victim is at least eighteen (18) years and she is unable to fully take care of herself or
protect herself from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition.50
Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another
person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of
another person if the victim did not consent either it was done through force, threat or
intimidation; or when the victim is deprived of reason or is otherwise unconscious; or by
means of fraudulent machination or grave abuse of authority as sexual assault as a form of
rape. However, in instances where the lascivious conduct is covered by the definition
under R.A. No. 7610, where the penalty is reclusion temporal medium, and the act is
likewise covered by sexual assault under Article 266-A, paragraph 2 of the RPC, which is
punishable by prision mayor, the offender should be liable for violation of Section 5(b),
Article III of R.A. No. 7610, where the law provides for the higher penalty of reclusion
temporal medium, if the offended party is a child victim. But if the victim is at least eighteen
(18) years of age, the offender should be liable under Art. 266-A, par. 2 of the RPC and not
R.A. No. 7610, unless the victim is at least eighteen (18) years and she is unable to fully
take care of herself or protect herself from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition, in which case, the
offender may still be held liable for sexual abuse under R.A. No. 7610.
There could be no other conclusion, a child is presumed by law to be incapable of giving
rational consent to any lascivious act, taking into account the constitutionally enshrined
State policy to promote the physical, moral, spiritual, intellectual and social well-being of
the youth, as well as, in harmony with the foremost consideration of the child's best
interests in all actions concerning him or her.51 This is equally consistent with the with the
declared policy of the State to provide special protection to children from all forms of
abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to
their development; provide sanctions for their commission and carry out a program for
prevention and deterrence of and crisis intervention in situations of child abuse,
exploitation, and discrimination.52 Besides, if it was the intention of the framers of the law to
make child offenders liable only of Article 266-A of the RPC, which provides for a lower
penalty than R.A. No. 7610, the law could have expressly made such statements.
As correctly found by the trial court, all the elements of sexual abuse under Section 5(b),
Article III of R.A. No. 7610 are present in the case at bar.
First, petitioner's lewd advances of touching the breasts and vagina of his hapless victim
constitute lascivious conduct as defined in Section 32, Article XIII of the Implementing
Rules and Regulations (IRR) of R.A. No. 7610:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin,
breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or
mouth, of any person, whether of the same or opposite sex, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of a person.53
Second, petitioner clearly has moral ascendancy over the minor victim not just because of
his relative seniority but more importantly due to the presumed presence of mutual trust
and confidence between them by virtue of an existing employment relationship, AAA being
a domestic helper in petitioner's household. Notably, a child is considered as sexually
abused under Section 5(b) of R.A. No. 7610 when he or she is subjected to lascivious
conduct under the coercion or influence of any adult. Intimidation need not necessarily
be irresistible. It is sufficient that some compulsion equivalent to intimidation annuls or
subdues the free exercise of the will of the offended party.54 The law does not require
physical violence on the person of the victim; moral coercion or ascendancy is
sufficient.55 On this point, Caballo v. People56 explicated:
As it is presently worded, Section 5, Article III of RA 7610 provides that when a child
indulges in sexual intercourse or any lascivious conduct due to the coercion or
influence of any adult, the child is deemed to be a "child exploited in prostitution and
other sexual abuse." In this manner, the law is able to act as an effective deterrent to
quell all forms of abuse, neglect, cruelty, exploitation and discrimination against children,
prejudicial as they are to their development.
In this relation, case law further clarifies that sexual intercourse or lascivious conduct under
the coercion or influence of any adult exists when there is some form of compulsion
equivalent to intimidation which subdues the free exercise of the offended party's
free will. Corollary thereto, Section 2(g) of the Rules on Child Abuse Cases conveys that
sexual abuse involves the element of influence which manifests in a variety of forms.
It is defined as:
The employment, use, persuasion, inducement, enticement or coercion of a child to
engage in, or assist another person to engage in, sexual intercourse or lascivious conduct
or the molestation, prostitution, or incest with children.
To note, the term "influence" means the "improper use of power or trust in any way that
deprives a person of free will and substitutes another's objective." Meanwhile, "coercion" is
the "improper use of x x x power to compel another to submit to the wishes of one who
wields it."57ChanRoblesVirtualawlibrary
Finally, the victim is 16 years of age at the time of the commission of the offense. Under
Section 3 (a) of R.A. No. 7610, "children" refers to "persons below eighteen (18) years of
age or those over but unable to fully take care of themselves or protect themselves from
abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental
disability or condition."
The decision of the trial court finding the petitioner guilty of Violation of Section 5(b), Article
III R.A. No. 7610 should have been upheld by the CA instead of erroneously adopting the
recommendation of the OSG, which inaccurately relied on People v. Abello.58 In said case,
the decisive factor for the acquittal of the accused was not the absence of coercion or
intimidation on the offended party, who was then sleeping at the time the lascivious act
was committed, but the fact that the victim could not be considered as a "child" under R.A.
No. 7610. This Court held that while the twenty-one year old woman has polio as a
physical disability that rendered her incapable of normal function, the prosecution did not
present any testimonial or documentary evidence - any medical evaluation or finding from
a qualified physician, psychologist or psychiatrist - attesting that the physical condition
rendered her incapable of fully taking care of herself or of protecting herself against sexual
abuse.
Thus, it is clear that petitioner could not have been entitled to apply for probation in the first
place. Regrettably, since neither the accused nor the OSG questioned the CA Decision, it
has attained finality and to correct the error at this stage is already barred by the right of
the accused against double jeopardy.
Based on the above disquisitions, the petitioner should be denied the benefit of the
Probation Law and that the Court should adopt the recommendations above-stated in
situations where an accused files an appeal for the sole purpose of correcting the penalty
imposed to qualify him for probation or where he files an appeal specifically claiming that
 16
he should be found guilty of a lesser offense necessarily included with the crime originally Effective on December 2, 1926.
filed with a prescribed penalty which is probationable.
17
Effective on November 26, 1929.
SO ORDERED.
18
Effective on November 21, 1930.
Sereno, C.J., Brion, Bersamin, Villarama, Jr., Reyes, and Perlas-Bernabe, JJ., concur.
19
Carpio, Del Castillo, and Perez, JJ., on official leave. AN ACT ESTABLISHING PROBATION FOR PERSONS, EIGHTEEN YEARS OF AGE
Jardeleza, J., no part. OR ABOVE, CONVICTED OF CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE
Velasco, Jr., J., i join dissent of J. Mendozza and register also my dissenting opinion ISLANDS; PROVIDING PROBATION OFFICERS THEREFOR; AND FOR OTHER
Leonardo-De Castro, J., I join the dissenting opinion of J. Mendoza. PURPOSES, Dated August 7, 1935.
Mendoza, J., see dissenting opinion.
Leonen, J., see concurring opinion. SEC. 8. This Act shall not apply to persons convicted of offenses punishable by death or
life imprisonment; to those convicted of homicide, treason, conspiracy or proposal to
commit treason; to those convicted of misprision of treason, sedition or espionage; to those
convicted of piracy, brigandage, arson, or robbery in band; to those convicted of robbery
Endnotes: with violence on persons when it is found that they displayed a deadly weapon; to those
convicted of corruption of minors; to those who are habitual delinquents; to those who have
been once on probation; and to those already-sentenced by final judgment at the time of
1
the approval of this Act.
678 Phil. 482(2011).
21
2
See 1.
Rollo, p. 33.
22
3
65 Phil. 56(1937).
Penned by Presiding Judge Joselito dj. Vibandor (Id. at 33-43).
23
4
ESTABLISHING A PROBATION SYSTEM, APPROPRIATING FUNDS THEREFOR AND
Id. at 42-43. OTHER PURPOSES.
5
601 Phil. 373(2009). 24
Emphasis supplied.
6
Penned by Associate Justice Myra V. Garcia-Fernandez, with Associate Justices Vicente 25
AMENDING CERTAIN SECTIONS OF PRESIDENTIAL DECREE NUMBERED NINE
S.E. Veloso and Stephen C. Cruz concurring (Rollo, pp. 117-130). HUNDRED AND SIXTY-EIGHT, OTHERWISE KNOWN AS THE PROBATION LAW OF
7
1976, Effective on December 1, 1977.
Id. at 132.
26
8
Emphasis supplied.
Id. at 132-144.
27
9
AMENDING PRESIDENTIAL DECREE NO. 968, OTHERWISE KNOWN AS THE
678 Phil. 482 (2011). PROBATION LAW OF 1976, Issued on October 5, 1985.
10
Rollo, pp. 26-29. 28
Emphasis supplied 29.
11
453 Phil. 270 (2003). 29
256 Phil. 328 (1989).
12
Rollo, pp. 146-155. 30
Llamado v. Court of Appeals, supra, at 335-339.
13
Id. at 31. 31
602 Phil. 989 (2009).
14
1898-1945. 32
Sable v. People, et al., supra, at 997.
15
AN ACT RELATING TO THE CARE AND CUSTODY OF NEGLECTED AND 33
Id.
DELINQUENT CHILDREN; PROVIDING PROBATION OFFICERS THEREFOR;
IMPOSING PENALTIES FOR VIOLATIONS OF ITS PROVISIONS AND FOR OTHER 34
Id. at 996.
PURPOSES.
35 48
Sable v. People, et al., supra note 31; Francisco v. Court of Appeals, 313 Phil. 241 Olivarez v. Court of Appeals, 503 Phil. 421, 432 (2005), citing People v. Larin, supra,
(1995); and Llamado v. Court of Appeals, supra note 29. and Amployo v. People, supra.
36 49
Sable v. People, et al, supra note 31. People v. Bonaagua, G.R. No. 188897, June 6, 2011, 650 SCRA 620, 638; Flordeliz v.
People, 628 Phil. 124, 140-141 (2010); Navarrete v. People, supra note 47, at 506;
37
Llamado v. Court of Appeals, supra note 29, at 339-340. and Amployo v. People, supra note 47, at 755.
38 50
The Court En Banc voted 9-6 in favor of Justice Roberto A. Abad, ponente. R.A. No. 7610, Sec. 3(a).
51
Corona (then C.J.), Carpio, Velasco, Jr., Leonardo-De Castro, Del Castillo, Perez, See Malto v. People, 560 Phil. 119, 139-142 (2007)
Mendoza, and Reyes, JJ., concur.
52
Brion, J., joining J. Peralta's Concurring and Dissenting Opinion. R.A. No. 7610, Art. 1, Sec. 2.
Peralta, J., Concurring and Dissenting Opinion.
53
Bersamin, J., joining J. Peralta's Concurring and Dissenting Opinion. People v. Larin, supra note 47, at 1005-1006. See also Imbo v. People, G.R. No. 197712,
Villarama, Jr., Concurring and Dissenting Opinion. April 20, 2015; People v. Gaduyon, supra note 47, at 148; Navarrete v. People, supra note
Sereno, J. (now C.J.), joining Justices Peralta and Villarama. 47, at 511; and Amployo v. People, supra note 47, at 759.
Perlas-Bernabe, J., joining J. Villarama.
54
People v. Gerandoy, G.R. No. 202838, September 17, 2014, 735 SCRA 520,
39
Sable v. People, et al., supra note 31, at 995. 540; Caballo v. People, supra note 47, at 242-243; Garingarao v. People, 669 Phil. 512,
524 (2011); People v. Rellota, 640 Phil. 471 (2010); People v. Abello, supra note 5, at 393;
40
SEC. 9. Disqualified Offenders. - The benefits of this Decree shall not be extended to and Amployo v. People, supra note 47, at 759.
those:
55
People v. Larin, supra note 47, at 1008.
a. sentenced to serve a maximum term of imprisonment of more than six
56
years;cralawlawlibrary Supra note 47.
b. convicted of subversion or any crime against the national security or the public
57
order;cralawlawlibrary Caballo v. People, supra note 47, at 242-243.
c. who have previously been convicted by final judgment of an offense punished by
58
imprisonment of not less than one month and one day and/or a fine of not less than Two Supra note 5.
Hundred Pesos;cralawlawlibrary
d. who have been once on probation under the provisions of this Decree; and
e. who are already serving sentence at the time the substantive provisions of this Decree
became applicable pursuant to Section 33 hereof.
41
Pablo v. Castillo, 391 Phil. 873, 878 (2000); Llamado v. Court of Appeals, supra note 28,
at 338.
DISSENTING OPINION
42
People v. Anderson, 50 Cal. 4th 19, 235 P.3d 11 (2010).
43
Dean v. State, 57 So.3d 169 (2010)
44 VELASCO, JR., J.:
170 Wash. 2d 103, 239 P.3d 1102 (2010). (Emphasis supplied)
45
P.D. No. 968, Sec. 2. (Emphasis supplied) When the law does not qualify, We should not qualify.1

46
453 Phil. 270 (2003).
47
People v. Larin, 357 Phil. 987, 997 (1998). See also Imbo v. People, G.R. No. 197712,
April 20, 2015; People v. Gaduyon, G.R. No. 181473, November 11, 2013, 709 SCRA 129,
149; Caballo v. People, G.R. No. 198732, June 10, 2013, 698 SCRA 227, 238; Navarrete
v. People, 542 Phil. 496, 510 (2007); and Amployo v. People, 496 Phil. 747, 758 (2005).
For resolution is the recurring question of whether an appellate court's downgrading of a
convict's offense or penalty - from a non-probationable to a probationable one -
subsequently entitles the accused to apply for the privilege of probation in spite of his prior
perfection of an appeal. Ultimately, this issue boils down to the interpretation of Section 4
of Presidential Decree (PD) No. 968, otherwise known as the Probation Law of 1976, as
amended by PD No. 1990.2 The provision pertinently reads:

Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may,
after it shall have convicted and sentenced a defendant and upon application by said
defendant within the period for perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for such period and upon such terms and
conditions as it may deem best; Provided, that no application for probation shall be
entertained or granted if the defendant perfected the appeal from the judgment of
conviction, (emphasis ours)
Initially, the Court strictly interpreted the provision as barring the convicted felon from
applying for probation if he opted to resort to filing an appeal.3 The rationale behind the
disqualification was enunciated by the Court in Francisco v. Court of Appeals, thus:
Probation is a special privilege granted by the state to a penitent qualified offender. It
essentially rejects appeals and encourages an otherwise eligible convict to
immediately admit his liability and save the state of time, effort and expenses to jettison
an appeal. The law expressly requires that an accused must not have appealed his
conviction before he can avail of probation. This outlaws the element of speculation on
the part of the accused to wager on the result of his appeal that when his conviction
is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his
sentence inevitable, he now applies for probation as an "escape hatch" thus rendering
nugatory the appellate court's affirmance of his conviction. Consequently, probation
should be availed of at the first opportunity by convicts who are willing to be reformed
and rehabilitated, who manifest spontaneity, contrition and remorse.4 (emphasis ours)
So it was held that perfecting an appeal automatically disqualifies a convicted offender
from availing of the benefits of the Probation Law, regardless of the grounds invoked in the
appeal lodged, and of whether or not the appeal resulted in the downward modification of
the offense or the penalty imposed from a non-probationable to a probationable one.
This reading of the afore-quoted proviso, however, has repeatedly been debated upon in
various cases of differing factual settings.5 And in these cases, the Court constantly
entertained the prospect of abandoning, if not substantially modifying, this rigid
interpretation to allow a penitent offender to apply for probation if he only became qualified
to apply for the benefits under the law after an appellate court downgraded his offense or
the penalty meted.
It will not be until December of 2011, in Colinares v. People,6 when the Court would take a
different posture in interpreting Sec. 4 of PD No. 968, as amended.
In Colinares, the Court was emphatic in its position that the error of a lower court should
not deprive the offender of the opportunity to seek the privilege of probation. In the words
of the ponencia therein, "[a]ng kabayo ang nagkasala, ang hagupit ay sa kalabaw (The
horse errs, the carabao gets the whip)."7 Thus, in the face of strong dissent, the majority
rejected the traditional interpretation of Sec. 4 and refused to read the provision as
prohibiting the offender from applying for the benefit of probation if the appeal was made
when the privilege of probation is not yet available.8
As held in Colinares, the appellate court's downward modification of the penalty meted,
from a non-probationable to a probationable one, amounted to an original conviction for
a probationable penalty. Under such circumstance, the Court held that the offender should
still be allowed to apply for the privilege of probation in spite of his prior perfection of an
appeal because the appeal was made at a time when he was not yet a qualified
offender. In other words, therein offender has not yet lodged an appeal from the original
judgment of conviction of a probationable penalty, qualifying him to apply for probation
under Sec. 4.
Regrettably, several members of the Court remain reluctant in adopting this novel
interpretation in Colinares, continually reasoning that the wording of the proviso is clear
and leaves no room for interpretation, and arguing that the Probation Law is not a penal
statute that must be construed liberally in favor of the accused.9 As in the case at bar,
instead of applying squarely the teaching in Colinares, the majority deviated therefrom and
needlessly imposed additional restrictions before one could avail of the benefits under the
Probation Law.
The ponencia ruled herein that for the accused to be allowed to apply for probation even if
he has filed an appeal, the appeal should be anchored only on the following grounds:
1. When the appeal is merely intended for the correction of the penalty imposedby
the lower court, which, when corrected, would entitle the accused to apply for
probation; and
2. When the appeal is merely intended to review the crime for which the accused
was convicted and that the accused should only be liable for the lesser offense
which is necessarily included in the crime for which he was originally convicted
and the proper penalty imposable is within the probationable period.
The majority is, in effect, affirming Colinares in making the grant of probation allowable
even after appeal, to which I agree. The similarity between the interpretations of Sec. 4
in Colinares and in the disposition of this case, however, ends here. Meanwhile,
divergence arises from the varying analysis of the phrase "appeal from the judgment of
conviction," which is a basis for disqualification under Sec. 4. Here, the majority puts
premium on the grounds invoked in the "appeal" adverted to, in that the appeal should not
question the finding of guilt and should not insist on the defendant's acquittal, regardless of
the penalty imposed and the crime the offender is convicted of. In
contrast, Colinares deems more significant the "judgment of conviction," rendering the
grounds the appeal was anchored on immaterial. Instead, what is of primordial
consideration in Colinares was whether or not the defendant was convicted of a
probationable offense or was meted a probationable penalty. If not, the defendant will still
be allowed to appeal his conviction on any ground, without losing the right to apply for
probation in the event that the appellate court reclassifies his offense or downgrades his
sentence to a probationable one.
Of the two interpretations, I respectfully submit that the Court's holding in Colinaresshould
be sustained. Therefore, I register my vote to GRANT the instant petition.
With all due respect to my colleagues, allow me to express my reservations on the Court's
imposition of prerequisites before an offender may avail of the benefits of the Probation
Law.

Firstly, the conditions imposed by the majority run counter to the spirit of the Probation
Law.
Recall the wording of the provision:
Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may,
after it shall have convicted and sentenced a defendant and upon application by said
defendant within the period for perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for such period and upon such terms and
conditions as it may deem best; Provided, that no application for probation shall be
entertained or granted if the defendant perfected the appeal from the judgment of
conviction.
Sec. 4 clearly commands that "no application for probation shall be entertained or
granted if the defendant perfected the appeal from the judgment of conviction.'" At first
blush, there is nothing vague in the provision that calls for judicial interpretation. The
provision, as couched, mandates that the perfection of an appeal disqualifies an otherwise
qualified offender from applying for probation.
Nevertheless, I fully concur with the Court's ruling in Colinares that the bar must be applied
only to offenders who were already qualified to apply for probation but opted to file an
appeal instead. An otherwise rigid application of the rule would defeat the very purpose of
the Probation Law, which is giving a qualified penitent offender the opportunity to be placed
on probation instead of being incarcerated. The preambulatory clause of PD No. 1990 says
as much:
WHEREAS, it has been the sad experience that persons who are convicted of
offenses and who may be entitled to probation still appeal the judgment of conviction
even up to the Supreme Court, only to pursue their application for probation when their
appeal is eventually dismissed; xxx. (emphasis ours)
Verily, the clause uses the conjunctive word "and" in qualifying the type of offenders to
whom the amendment applies. Unmistakably, it refers not simply to convicted offenders in
general, but more specifically to qualified convicted offenders. What PD No. 1990 then
contemplates and seeks to address is the situation where qualifiedconvicted offenders
showed lack of repentance by appealing their conviction instead of admitting their guilt and
asking for the State's graciousness and liberality by applying for the privilege of probation.
This supports the majority opinion in Colinares that the disqualification under Sec. 4 does
not cover a formerly disqualified convicted offender who later on becomes qualified to
apply for probation by reason of a partially meritorious appeal, sustaining the conviction but
for a lesser offense or penalty. To reiterate, the reduction of the penalty imposed
in Colinares, from a non-probationable to a probationable one, amounted to an original
conviction from which no appeal has yet been taken, and thereby qualifies the convicted
felon to apply for probation under the law.
Unlike this modification in the interpretation of Sec. 4 of PD No. 968 that was introduced
in Colinares, the ponencia's, imposition of additional restrictions for availing of the benefits
under the Probation Law is not in keeping with the spirit of the law. To recall,
the ponencia intimates that the added restrictions are based on the argument that what is
prohibited under the Probation Law is challenging the judgment of conviction, which, in the
majority's posture, is the finding of guilt, without distinction on whether the penalty imposed
is probationable or not. According to the majority, the accused may still lodge an appeal
and qualify for probation if the appeal is limited to praying for the reduction of the penalty
imposed or downgrading the crime he is convicted of, and should in no way insist on his
innocence. With these requirements in place, the majority effectively would want the
accused to change his theory of the case and belatedly plead guilty on appeal to a lesser
offense, akin to a last minute plea-bargain.
The problem here is that the ponencia's interpretation is tantamount to forcing the accused
to already forego appealing for his acquittal at a time that probation is not yet available.
This goes against the rationale of the law, which seeks to discourage from appealing only
those who are, in the first place, already qualified to apply for probation, but waste
the opportunity by insisting on their innocence. What is more,
the ponencia's restrictive proposition would lead to a baffling result - the very appeal that
would have qualified the convicted felon to apply for probation (i.e., the appeal that
resulted in the downgrading of the offense or the reduction of the penalty to a
probationable one) would also be the very same appeal that would disqualify him
from availing thereof.
More on this first point, recall that the Probation Law was enacted for the following
reasons:
WHEREAS, one of the major goals of the government is to establish a more enlightened
and humane correctional system that will promote the reformation of offenders and thereby
reduce the incidence of recidivism;cralawlawlibrary
WHEREAS, the confinement of all offenders in prisons and other institutions with
rehabilitation programs constitutes an onerous drain on the financial resources of the
country; and
WHEREAS, there is a need to provide a less costly alternative to the imprisonment of
offenders who are likely to respond to individualized, community-based treatment
programs;
On the basis thereof, PD No. 968 commands that it shall be interpreted as to:
(a) Promote the correction and rehabilitation of an offender by providing him with
individualized treatment;cralawlawlibrary
(b) Provide an opportunity for the reformation of a penitent offender which might be less
probable if he were to serve a prison sentence; and
(c) Prevent the commission of offenses.10
Now, relate the legislature's above-stated rationale of the Probation Law to the
preambulatory clauses of PD No. 1990, which introduced the amendment removing the
allowance of probation after the already qualified offender appealed his conviction, to wit:
WHEREAS, it has been the sad experience that persons who are convicted of
offenses and who may be entitled to probation still appeal the judgment of
conviction even up to the Supreme Court, only to pursue their application for
probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution, conviction and appeal
entails too much time and effort, not to mention the huge expenses of litigation, on the part
of the State;cralawlawlibrary
WHEREAS, the time, effort and expenses of the Government in investigating and
prosecuting accused persons from the lower courts up to the Supreme Court, are
oftentimes rendered nugatory when, after the appellate Court finally affirms the judgment of
conviction, the defendant applies for and is granted probation;cralawlawlibrary
WHEREAS, probation was not intended as an escape hatch and should not be used
to obstruct and delay the administration of justice, but should be availed of at the
first opportunity by offenders who are willing to be reformed and
rehabilitated;cralawlawlibrary
WHEREAS, it becomes imperative to remedy the problems above-mentioned confronting
our probation system;11 (emphasis ours)
As can be gleaned, the declared purposes of the Probation Law and its amendatory law all
echo the State's inclination towards a rehabilitative, as opposed to a punitive, system. In
fact, the proviso that the perfection of an appeal disqualifies the offender from applying for
probation is to ensure that the privilege of probation is extended only to penitent qualified
offenders, those the state deems to have the potential to be rehabilitated.
In ascertaining an offender's penitence, the Court has repeatedly held that the qualified
offender's perfection of an appeal questioning his conviction, instead of beseeching the
State's generosity through an application for probation at the first opportunity, is
antithetical to remorse and penitence. Bear in mind, though, that the amendment was
prompted by the State's past experience where qualified offenders "wager" their chances
and still seek an acquittal, only to invoke the privilege of probation when it is almost certain
that they would not be found innocent. It would, therefore, be erroneous to apply the
same principle to offenders who are not qualified, those who had no opportunity, to
seek the privilege in the first place. We cannot expect them to immediately show
remorse via applying for probation, putting their right to appeal on the line in so doing,
when they are not even qualified for the privilege under the law. In their case, there is no
wager and no "first opportunity" to apply for probation to speak off, but a clear lack of
option on the part of the offenders. They had no other choice but to appeal.
Secondly, the majority's imposition of said conditions is in violation of the constitutionally-
mandated separation of powers underlying the very existence of the government.
Well-entrenched is the rule that the primordial duty of the Court is merely to apply the law
in such a way that it does not usurp legislative powers by judicial legislation.12 Thus, in the
course of such application or construction, it should not make or supervise legislation, or
under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the
law, or give the law a construction which is repugnant to its terms.13 The Court should shy
away from encroaching upon the primary function of a co-equal branch of the Government;
otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers
by means of judicial legislation.14
To hold, in the case at bar, that a formerly disqualified offender who only became qualified
for probation after judgment by an appellate court is still disqualified from applying for the
privilege is tantamount to amending the law via judicial interpretation. With the Court's
disposition of the instant petition, the majority is effectively placing additional qualifications
and grounds for disqualification that not only cannot be found anywhere in the four corners
of the statute, but, worse, defeat the very purpose for which the Probation Law was
enacted.
Had the Probation Law intended the exclusion of formerly disqualified offendersfrom those
who may avail of the privilege, then it would have included such exclusion in the list of
disqualified offenders under Sec. 9 of PD No. 968, as amended, which, in its entirety,
reads:
Sec. 9. Disqualified Offenders. - The benefits of this Decree shall not be extended to
those:chanRoblesvirtualLawlibrary
(a) sentenced to serve a maximum term of imprisonment of more than six
years;cralawlawlibrary
(b) convicted of subversion or any crime against the national security or the public
order;cralawlawlibrary
(c) who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or a fine of not less than Two
Hundred Pesos.
(d) who have been once on probation under the provisions of this Decree; and
(e) who are already serving sentence at the time the substantive provisions of this Decree
became applicable pursuant to Section 33 hereof.ChanRoblesVirtualawlibrary
These disqualifications listed under Sec. 9 should be differentiated from the disqualification
under Sec. 4. Sec. 9 enumerates the legal bars from acquiring the eligibility to apply
for probation. Meanwhile, the Sec. 4 proviso states the manner on how one loses the
eligibility to apply for probation which he already possesses. To interpret here then that
an offender who is not yet qualified to apply for probation may be prejudiced by the
grounds he would raise in his appeal would mean amending Sec. 9 so as to include those
who have raised their guilt as an issue on appeal.
This unwarranted judicial amendment to the law violates the fundamental maxim
"expressio unius est exclusio alterius." The express mention of one person, thing, act, or
consequence excludes all others. Thus, where a statute, by its terms, is expressly limited
to certain matters, it may not, by interpretation or construction, be extended to others. This
rule is based on the premise that the legislature would not have made specified
enumerations in a statute had the intention been not to restrict its meaning and to confine
its terms to those expressly mentioned.15
Moreover, the ponencia, in its postulation, basically legislates the timeframe for an
offender's penitence. The ponencia is virtually sending a message to convicted felons that
they should already be penitent even before they are qualified to apply for probation to be
allowed to avail of the privilege in the off-chance that the penalty meted on them is reduced
or the crime they are convicted of is downgraded on appeal.
We have to consider though that it is only natural for a person charged with a crime,
subjected to a highly adversarial process, and going up against the "People of the
Philippines" in litigation, to be on the defensive and insist on his innocence rather than
readily sacrifice his liberty in gambling for a mere probability of becoming eligible for, not
necessarily entitled to, probation. This does not mean, however, that he who is guilty but
denies the commission of the crime even after having been convicted by the trial court will
never ever regret having committed the offense. For his perceived lack of option, a litigant
may be compelled to appeal his conviction, without necessarily making him any less
repentant later on. It would not come as a surprise if it will only be after his appeal is heard,
after the penalty imposed upon him is lessened or after his crime was downgraded, after a
window of opportunity to receive a second lease in life opens, would his penitence be
manifest in his pleadings, would he apply for probation, and would he no longer pursue the
case or push his luck.
As explained, insisting on proving one's innocence is an understandable natural human
behavior. It is not, at all times and in all cases, proof of depravity. In the same way, the
observance of the proposed restrictions, which are supposedly intended to ensure that
only penitent offenders are allowed to apply for the privilege of probation, cannot guarantee
that the person invoking the limited grounds on appeal is, in fact, remorseful. Furthermore,
one cannot expect an offender to be, in all cases, impelled by remorse in applying for the
probation instead of appealing, for it may be that he sacrificed his right to fight for his
innocence out of fear of losing the privilege if he makes any further attempt thereat.
Fortunately, the grant of the privilege is entirely different from the right to apply for its
grant.16Consider, too, that the grant is discretionary upon the trial court, hence the use of
the word "may."17 Thus, there are other means by which the courts may determine whether
the qualified offender is indeed penitent or not, other than looking to the grounds on which
his appeal was hinged. The grounds raised in the appeal should then be immaterial. And
instead of restraining an erstwhile disqualified offender's right to appeal, the Court should
adopt an effective system for weeding out those who abuse the State's generosity. This
way, we can assist in the administration of the restorative justice that the Probation Law
seeks to enforce without sacrificing civil liberties or encroaching upon the power of the
Legislative Branch. To impose such restrictions on the filing of an appeal by the
disqualified convicted offender would, more often than not, result in injustice, rather than
promote the laudable purpose of the Probation Law.
Thirdly, following Colinares, the "judgment of conviction" referred to in Sec. 4 from which
no appeal should be taken should, as earlier stressed, be understood to be the original
conviction for a probationable penalty or offense, and not simply to the trial court's first
finding of guilt.
It may be tempting to interpret the phrase "judgment of conviction" to refer to the trial
court's finding of guilt since "trial court" was specifically mentioned in Sec. 4, without any
reference to appellate courts. This, however, does not come as a shock. The trial court's
mention, after all, comes naturally since, as the court of origin,18 the suspension of the
execution of the sentence and the placing of the defendant on probation are just a few of
its functions. The first part of Sec. 4, thus, merely echoes the rule that the execution of
judgments19 and the resolution of an application for probation20 are the duties of the trial
courts, nothing more. It should not be construed in such a way that the appeal being
referred to in said Sec. 4 is that taken only from the trial court to an appellate court as this
is an entirely different matter.
To be clear, nowhere in the Probation Law does it provide that the "appeal" from the
judgment of conviction should be that made from the trial court to the appellate court.
Hence, the "appeal" could very well refer to any of the three (3) opportunities to seek a
review of a judgment of conviction in criminal procedure: (a) questioning the judgments of
the Municipal Trial Court, Metropolitan Trial Court, Municipal Circuit Trial Court, and of the
Municipal Trial Court in Cities before the Regional Trial Court; (b) elevating the case from
the Regional Trial Court to the Court of Appeals; and (c) by assailing the unfavorable
Decision of the Court of Appeals to this Court the court of last resort.21
Corollarily, it is submitted that the "judgment of conviction" should not be taken to mean the
initial finding of guilt, since, as maintained by the majority in Colinares, an original judgment
of conviction may also be handed down by the appellate courts, especially when it involves
the annulment or modification of the trial court's decision. As discussed, the appellate
court's judgment convicting therein defendant, for the first time, of a probationable crime or
imposing upon him a probationable penalty should be treated as an original conviction,
entitling him to apply for probation in spite of perfecting an appeal.22 The appeal lodged by
the offender, which reduced his conviction to a probationable one, in no way adversely
affected his later-acquired eligibility.
In line with the teachings in Colinares, the Court should view the appellate court's
judgment which effectively qualified the offender for probation as the conviction
from which the defendant should not appeal from if he wishes to apply for the
privilege of probation. This should be the case for the simple reason that he has not yet
questioned this second original conviction which qualifies him for probation. To reiterate,
what the law proscribes is the application for probation by a defendant who has appealed
his conviction for a probationable crime or with a probationable penalty. This proscription
should, therefore, come in only when the offender has already been convicted of a
probationable crime or imposed a probationable penalty, not when he was still disqualified
for probation.
Fourthly, the adoption of the conditions set by the majority in the instant case will result in
a situation where We would be requiring from the defense lawyer a degree of diligence that
is less than that expected of him under our Rules, at his client's expense.
To elucidate, We are all very much aware of a defense lawyer's duty to his client in that:
xxx A lawyer engaged to represent a client bears the responsibility of protecting the latter's
interest with utmost diligence. It is his duty to serve his client with competence and
diligence, and he should exert his best efforts to protect, within the bounds of the law, the
interests of his client. A lawyer's diligence and vigilance is more imperative in criminal
cases, where the life and liberty of an accused is at stake.23
Simply put, a defense lawyer is expected to advocate his client's innocence in line
with the principle deeply embedded in our legal system that an accused is
presumed innocent until proven guilty beyond reasonable doubt. The lawyer owes
"entire devotion to the interest of the client, warm zeal in the maintenance and defense of
his rights and the exertion of his utmost learning and ability," to the end that nothing be
taken or be withheld from the latter, save by the rules of law, legally applied.24 Thus, unless
and until his client has been convicted with finality, we cannot expect his counsel to
detract, or even require him to detract from this duty, and convince his client to simply
admit guilt and either seek a reduction of the penalty imposed or the downgrading of the
crime he has been convicted of just so the client may have a window of opportunity to
apply for the privilege of probation if and only if the appeal is granted. Instead, the client, in
the judicial forum, should be afforded the benefit of any and every remedy and defense
that is authorized by the law of the land, and he may expect his lawyer to assert every such
remedy or defense.25cralawred
Lastly, in rejecting the petitioner's plea that the Probation Law be liberally construed in his
favor, the Court ruled that PD 968 is not a penal law that would warrant the application of
the pro reo doctrine. The ruling was premised on the instruction of the Court in Llamado v.
Court of Appeals, viz:
Turning to petitioner's invocation of "liberal interpretation" of penal statutes, we note at the
outset that the Probation Law is not a penal statute. We, however, understand petitioner's
argument to be really that any statutory language that appears to favor the accused in a
criminal case should be given a "liberal interpretation." Courts, however, have no authority
to invoke "liberal interpretation" or "the spirit of the law" where the words of the statute
themselves, and as illuminated by the history of that statute, leave no room for doubt or
interpretation. We do not believe that "the spirit of law" may legitimately be invoked to set
at naught words which have a clear and definite meaning imparted to them by our
procedural law. The "true legislative intent" must obviously be given effect by judges and
all others who are charged with the application and implementation of a statute. It is
absolutely essential to bear in mind, however, that the spirit of the law and the intent that is
to be given effect are to be derived from the words actually used by the law-maker, and not
from some external, mystical or metajuridical source independent of and transcending the
words of the legislature.
The Court is not here to be understood as giving a "strict interpretation" rather than a
"liberal" one to Section 4 of the Probation Law of 1976 as amended by P.D. No. 1990.
"Strict" and "liberal" are adjectives which too frequently impede a disciplined and principled
search for the meaning which the law-making authority projected when it promulgated the
language which we must apply. That meaning is clearly visible in the text of Section 4, as
plain and unmistakable as the nose on a man's face. The Court is simply reading Section 4
as it is in fact written. There is no need for the involved process of construction that
petitioner invites us to engage in, a process made necessary only because petitioner
rejects the conclusion or meaning which shines through the words of the statute. The first
duty of a judge is to take and apply a statute as he finds it, not as he would like it to be.26
This oft-cited ratio in supporting the continued refusal to reject the proposed application of
Sec. 4, however, must also be reconsidered since this cited pronouncement of the Court
actually deals with a different issue, albeit pertaining to the same provision.
It bears noting that Llamado dealt with the issue of whether or not petitioner's application
for probation, which was filed after a notice of appeal had been filed with the trial court,
after the records of the case had been forwarded to the Court of Appeals, after the Court of
Appeals had issued the notice to file Appellant's Brief, after several extensions of time to
file Appellant's Brief had been sought from and granted by the Court of Appeals, but before
actual filing of such brief, is barred under PD No. 968, as amended.27 In essence, it dealt
with the alleged establishment by the amendment of a narrower period during which an
application for probation may be filed with the trial court. As the Court clarified:
In applying Section 4 in the form it exists today (and at the time petitioner Llamado was
convicted by the trial court), to the instant case, we must then inquire whether petitioner
Llamado had submitted his application for probation "within the period for perfecting an
appeal." Put a little differently, the question is whether by the time petitioner
Llamado's application was filed, he had already "perfected an appeal" from the
judgment of conviction of the Regional Trial Court of Manila.28 (emphasis
ours)ChanRoblesVirtualawlibrary
A reading of Llamado reveals that the Court's refusal to liberally interpret Sec. 4 actually
referred to the phrase "period for perfecting an appeal" and not the proviso being
discussed in the present case. It was therein petitioner's argument that:
xxx the phrase "period for perfecting an appeal" and the clause "if the defendant has
perfected an appeal from the judgment of conviction" found in Section 4 in its current form,
should not be interpreted to refer to Rule 122 of the Revised Rules of Court; and that the
"whereas" or preambulatory clauses of P.D. No. 1990 did not specify a period of fifteen
(15) days for perfecting an appeal.3 It is also urged that "the true legislative intent of the
amendment (P.D. No. 1990) should not apply to petitioner who filed his Petition for
probation at the earliest opportunity then prevailing and withdrew his
appeal."29ChanRoblesVirtualawlibrary
which the Court flatly rejected for the ensuing reason:
We find ourselves unable to accept the eloquently stated arguments of petitioner's counsel
and the dissenting opinion. We are unable to persuade ourselves that Section 4 as it
now stands, in authorizing the trial court to grant probation "upon application by
[the] defendant within the period for perfecting an appeal" and in reiterating in the
proviso that
no application for probation shall be entertained or granted if the defendant has
perfected an appeal from the judgment of conviction.
did not really mean to refer to the fifteen-day period established, as indicated
above, by B.P. Big. 129, the Interim Rules and Guidelines Implementing B.P. Blg.
129 and the 1985 Rules on Criminal Procedure, but rather to some vague and
undefined time, i.e., "the earliest opportunity" to withdraw the defendant's
appeal. The whereasclauses invoked by petitioner did not, of course, refer to the fifteen-
day period. There was absolutely no reason why they should have so referred to that
period for the operative words of Section 4 already do refer, in our view, to such fifteen-day
period, xxxx Upon the other hand, the term "period for perfecting an appeal" used in
Section 4 may be seen to furnish specification for the loose language "first opportunity"
employed in the fourth whereas clause. "Perfection of an appeal" is, of course, a term of art
but it is a term of art widely understood by lawyers and judges and Section 4 of the
Probation Law addresses itself essentially to judges and lawyers. "Perfecting an appeal"
has no sensible meaning apart from the meaning given to those words in our
procedural law and so the law-making agency could only have intended to refer to
the meaning of those words in the context of procedural law.30 (emphasis ours)
With the above, it is evident that when this Court pronounced in Llamado its refusal to
liberally apply Sec. 4 of the Probation Law, as amended, it was doing so within the context
of interpreting the phrase "period for perfecting an appeal," which, as we all know, has a
definite meaning in procedural law. It is therefore, understandable why the Court,
4
in Llamado, rejected therein petitioner's request for a liberal interpretation of the phrase. Francisco v. Court of Appeals, G.R. No. 108747, April 6, 1995, 243 SCRA 384, 386-387.
5
In conclusion, it is simply incorrect for the Court to interpret Sec. 4 as prohibiting the See Colinares v. People, supra note 3; Lagrosa v. People, G.R. No. 152044, July 3,
defendant from arguing for his acquittal at a time that the privilege of probation is not yet 2003, 405 SCRA 357; Francisco v. Court of Appeals, id.
available to him. To follow the ponencia's interpretation would lead to a scenario wherein
6
the Court would be subjecting disqualified offenders to the requirements of applying for G.R. No. 182748, December 13, 2011, 662 SCRA 266.
probation in spite of their patent ineligibility (by reason of the penalty imposed or the
7
categorization of the offense). Colinares v. People, supra at 279.
8
The more precise interpretation, therefore, would be to grant this opportunity to apply Id. at 280.
for probation when the accused is originally convicted for a probationable offense
9
or sentenced to suffer a probationable penalty, without distinction on whether the Francisco v. Court of Appeals, supra note 3, at 390.
said "original conviction" was issued by the trial court or appellate court. What is
10
material is that the application for the privilege of probation be made at the first PRESIDENTIAL DECREE NO. 968, Sec. 2.
opportunity, which is the period to appeal from when the offender first became
11
qualified for the privilege. For how can we say that the convicted offender wagered for PRESIDENTIAL DECREE NO. 1990.
an acquittal on appeal instead of applying for probation when he is not qualified to avail of
12
the benefits of the Probation Law in the first place? He simply had no other option at that Corpuz v. People, supra note 1, at 57.
point.
13
Id.
As in Colinares, petitioner in this case became qualified for probation only after the
14
appellate court modified the trial court's ruling. If, notwithstanding this downward Id.
modification of the penalty imposed or the crime the accused is convicted of,
15
the now qualified defendant still appeals his new conviction on whatever ground, Romualdez v. Marcelo, G.R. Nos. 165510-33, July 28, 2006, 497 SCRA 89, 108.
then, this would be the time when his appeal would bar him from applying for the
16
privilege under Sec. 4. Colinares v. People, supra note 3, at 278.
17
While it is true that there is a risk that the abuse of the State's generosity by convicted Section 4, PD No. 968, as amended, provides: "Subject to the provisions of this Decree,
offenders may still persist because of Colinares, we should not, however, deprive all the trial court may, after it shall have convicted and sentenced a defendant and upon
accused persons, whether guilty or not, the opportunity to defend themselves and their application by said defendant within the period for perfecting an appeal, suspend the
liberty and to prove their case, lest we run the risk of forcing innocent persons to forego execution of the sentence and place the defendant on probation for such period and upon
their liberty simply because applying for probation is easier than proving their innocence. such terms and conditions as it may deem best; xxx." (emphasis ours)
To me, this might, more often than not, result in a failure of justice rather than its
18
administration. Section 1. Execution upon judgments or final orders. - Execution shall issue as a matter
of right, on motion, upon a judgment or order that disposes of the action or proceeding
In view of the foregoing disquisitions, I reiterate my vote to GRANT the instant petition. upon the expiration of the period to appeal therefrom if no appeal has been duly perfected.

If the appeal has been duly perfected and finally resolved, the execution may forthwith be
Endnotes: applied for in the court of origin, on motion of the judgment oblige, submitting therewith
certified true copies of the judgment or judgments or final order or orders sought to be
enforced and of the entry thereof, with notice to the adverse party.
1
Corpuz v. People, G.R. No. 180016, April 29, 2014, 724 SCRA 1, 33, citing Asejo v. The appellate court may, on motion in the same case when, the interest of justice so
People, 555 Phil. 106. requires, direct the court of origin to issue the writ of execution. (RULES OF COURT, Rule
2
39.)
AMENDING PRESIDENTIAL DECREE No. 968, OTHERWISE KNOWN AS THE
PROBATION LAW of 1976. 19
See RULES OF COURT, Rule 39, Sec. 1.
3
See Almero v. People, G.R. No. 188191, March 12, 2014, 718 SCRA 698;Colinares v. 20
See Section 3, PD 968. Meaning of Terms. - xxx
People, G.R. No. 182748, December 13, 2011, 662 SCRA 266; Sable v. People, G. R. No.
177961, April 7, 2009, 584 SCRA 619; Soriano v. Court of Appeals, G.R. No. 123936, (a) "Probation" is a disposition under which a defendant, after conviction and sentence, is
March 4, 1999, 304 SCRA 231.
released subject to conditions imposed by the court and to the supervision of a for committing a lascivious conduct upon a 16-year old complainant.
probation officer, (emphasis ours)
To prove its accusation, the prosecution presented private complainant AAA, Department
21
REVISED RULES OF CRIMINAL PROCEDURE, Rule 122, Section 2. of Social Welfare and Development Social Worker (DSWD) Arleen Bibit, and PO1 Toledo I.
Mauricio, Jr., as its witnesses. The defense, on the other hand, presented Mustapha and
22
Colinares v. People, supra note 3, at 280. Allan Dimakuta to substantiate its claim of his innocence. Mustapha denied the accusation
and claimed that AAA merely concocted the charge against him just so that she could have
23
Mattus v. Villaseca, A.C. No. 7922, October 1, 2013, 706 SCRA 477, 484. a reason to leave their house where she worked as a domestic helper and be reunited with
her family in the province.
24
Regala v. Sandiganbayan, First Division, G.R. Nos. 105938 & 108113, September 20,
1996, 262 SCRA 122, 140. On September 3, 2008, the RTC rendered its Decision,4 finding Mustapha guilty as
charged, and meted out the penalty often (10) years of prision mayor, as minimum, to
25
Id. seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum,
with the accessory penalty of perpetual absolute disqualification. Further, Mustapha was
26
Llamado v. Court of Appeals, G.R. No. 84850, June 29, 1989, 174 SCRA 566, 577-578. ordered to pay a fine of P25,000.00; civil indemnity of P25,000.00; and moral damages of
P25,000.00.
27
Id. at 576.
Not satisfied, Mustapha appealed the RTC judgment of conviction before the CA claiming
28
Id. at 574. that the trial court egregiously erred in declaring him guilty of violating Section 5(b), Article
III of R.A. No. 7610. He faulted the trial court for giving undue faith and credence to the
29
Id. at 575. testimony of AAA, contending that it was laced with inconsistencies and improbabilities,
tainting the veracity of her charge. He argued that even assuming that he indeed touched
30
Id. at 576-577. the breasts and vagina of AAA, still there was no concrete prosecution evidence showing
that the said lascivious act was committed through force, duress, intimidation or violence
and, hence, his conviction under R.A. No. 7610 was erroneous. He added that he could not
be convicted of Acts of Lasciviousness under Article 336 of the Revised Penal Code (RPC)
either as the prosecution failed to establish the essential elements of the said crime.

In its Appellee's Brief,5 the Office of the Solicitor General (OSG) averred that the RTC was
correct in lending weight and credence to the testimony of AAA and that the alleged
DISSENTING OPINION inconsistencies in her testimony pertained merely on minor details and did not negate the
commission of the sexual molestation. The OSG, however, was of the view that Mustapha
should have been convicted of Acts of Lasciviousness only under Article 336 of the
RPC and not for Violation of Section 5(b), Article III of R.A. No. 7610 because the
MENDOZA, J.: prosecution failed to prove that the lascivious conduct was committed through coercion or
intimidation.6

In this petition for review on certiorari, petitioner Mustapha Dimakuta y Maruhon @ Boyet
(Mustapha) seeks to reverse and set aside the September 3, 20121 and March 13,
20132 Resolutions of the Court of Appeals (CA), in CA-G.R. CR No. 31963, which denied
his motion that he be entitled to probation.
In the decision of the majority, the petition reversed its ruling in Colinares v. People3and
denied the subject petition.
With due respect to the learned ponente of the case, I dissent.
In its June 28, 2012 Decision,7 the CA agreed with the OSG and modified the judgment of
the RTC and convicted Mustapha for Acts of Lasciviousness only under Article 336 of the
RPC explaining that coercion or intimidation, the second element of the crime of violation of
Section 5(b), Article III of R.A. No. 7610, was wanting in Criminal Case No. 05-1098.
According to the CA, the evidence on record revealed that AAA was asleep at the time the
sexual abuse happened and only awoke when she felt her breasts being mashed and her
vagina being touched. The CA noted that after being roused from sleep, AAA immediately
put on some clothes and rushed out of her room, leaving Mustapha behind, and locked
herself in the stockroom.

The Antecedents:
Petitioner Mustapha was charged with the offense of Violation of Section 5(b), Article III of
Republic Act (R.A.) No. 7610, otherwise known as the Special Protection of Children
against Child Abuse, Exploitation and Discrimination Act, filed before the Regional Trial
Court, Branch 199, Las Pifias City, (RTC) docketed therein as Criminal Case No. 05-1098,
The CA added that there was no showing that Mustapha compelled AAA, or cowed her into
silence to bear his sexual assault. Neither was there evidence that she had the time to
manifest conscious lack of consent or resistance to Mustapha's assault. It stressed that the
lascivious acts imputed to him had taken place while private complainant was in deep
slumber or unconscious, under almost the same factual circumstances as in the case
of People v. Abello,8 where the accused was found guilty beyond reasonable doubt of the
crime of Acts of Lasciviousness, defined and penalized under Article 336 of the RPC
instead of the charge of violation of Section 5(b), Article III of R.A. No. 7610. The CA
justified its ruling that Mustapha's conviction under Article 336 of the RPC was proper for
the reasons that: 1) the recital of ultimate facts and circumstances in the Information
constituted acts of lasciviousness; and 2) the evidence adduced by the prosecution
established beyond reasonable doubt his guilt of the said crime. The dispositive portion of
the CA decision reads:
WHEREFORE, the Decision appealed from is MODIFIED. Accused-appellant Mustapha
Dimakuta y Maruhom alias "Boyet" is found GUILTY of acts of lasciviousness, defined and
penalized under ARTICLE 336 of the REVISED PENAL CODE, as amended and he is
sentenced to the indeterminate penalty of SIX (6) MONTHS of arresto mayor, as minimum,
to FOUR (4) YEARS and TWO (2) MONTHS of prision correctional, as maximum.
Accused-appellant is likewise ordered to pay the private complainant TWENTY
THOUSAND PESOS (P2o,ooo.oo) as civil indemnity and THIRTY THOUSAND PESOS
(P30,000.00) as moral damages.
SO ORDERED.9
Instead of moving for reconsideration, Mustapha filed on July 23, 2012, a manifestation
with motion10 before the CA praying that he be allowed to apply for probation under
Presidential Decree (P.D.) No. 968 upon its remand to the trial court for execution. He
placed reliance on the Court's ruling in Colinares where the accused was allowed to apply
for probation under the reduced penalty imposed on appeal. Mustapha contended that he
should not be prejudiced by the erroneous judgment of the RTC which convicted him with
the wrong crime and sentenced him with a penalty beyond the coverage of the Probation
Law. He submitted that the Probation Law must be liberally construed in favor of the
accused.
In its first assailed Resolution, dated September 3, 2012, the CA denied due course to
Mustapha's manifestation with motion, holding that the Colinares case was not on all fours
with the present case. The CA explained that in Colinares case, the petitioner raised as
sole issue the correctness of the penalty imposed and claimed that the evidence at best
warranted a conviction for a lesser offense of attempted homicide; while Mustapha never
assailed the propriety of the penalty meted out against him and, in fact, questioned the
findings of facts and conclusions drawn by the RTC based on the evidence adduced by the
prosecution. It held that the ruling in Lagrosa v. People11 is more at point. In said case, it
was held that the petitioners therein were precluded from seeking probation after taking a
guiltlessness stance and put in issue the merits of their conviction on appeal. The CA, thus,
adjudged as follows:
WHEREFORE, the Manifestation with Motion to Allow Accused-Appellant to Apply for
Probation under Presidential Decree No. 968 is DENIED.
SO ORDERED.12
Mustapha moved for reconsideration, but his motion was denied in the second assailed
Resolution, dated March 13, 2013.
Hence, this petition.chanrobleslaw
GROUND
THE COURT OF APPEALS' DENIAL OF THE PETITIONER'S RIGHT TO APPLY FOR
PROBATION [AS IT DID] NOT QUESTION THE PROPRIETY OF THE PENALTY UPON
APPEAL, IS CONTRARY TO THE DECIDED CASE OF ARNEL COLINARES VS.
PEOPLE.13
The threshold issue that begs an answer from this Court is whether or not Mustapha has
the right to apply for probation under the new penalty imposed by the CA which is within
the probationable limit.
Mustapha posits that he can still avail of the benefits of probation under P.D. No. 968, as
amended by P.D. No. 1990, despite having appealed the September 3, 2008 RTC decision
because the opportunity to apply for probation came into being only upon his conviction by
the CA of the crime of Acts of Lasciviousness and the imposition of a lesser penalty which
fell within the probationable level.
By way of Comment14 to the petition, the OSG counters that Mustapha's right to apply for
probation was lost when he perfected his appeal from the RTC judgment of conviction. It
argues that the perfection of an appeal is a relinquishment of the alternative remedy of
availing the Probation Law because appeal and probation are mutually exclusive remedies
which rest on diametrically opposed legal positions. The OSG submits that
the Colinares case is not squarely applicable in the case at bench because Mustapha
never admitted guilt and did not limit the issue on the correctness of the penalty meted out
by the trial court.
I am of the view that the petition is impressed with merit.
Probation is not a right of an accused but a mere privilege, an act of grace and clemency
or immunity conferred by the State, which is granted to a deserving defendant who thereby
escapes the extreme rigors of the penalty imposed by law for the offense of which he was
convicted.15 In recent jurisprudence, it has been clarified that while the convicted offender
has no right to such privilege, nevertheless, he has the right to apply for that
privilege,16 provided that he is not disqualified from availing the benefits of probation.
To properly understand the current application of the Probation Law, a brief review of its
history is but appropriate. As originally promulgated on July 24, 1976, P.D. No. 968 allowed
the filing of an application for probation even if an appeal had been perfected by the
convicted offender. When the law was later amended by P.D. No. 1257 on December 1,
1977, the filing of an application for probation pending appeal was still allowed and, in fact,
fixed the period to the point just "before he begins to serve his sentence." With the
subsequent amendment of Section 4 of P.D. No. 968 by P.D. No. 1990, however, the
application for probation is no longer allowed if the accused has perfected an appeal from
the judgment of conviction. Section 4 of the Probation Law now reads:
Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may,
after it shall have convicted and sentenced a defendant and upon application by said
defendant within the period for perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for such period and upon such terms and
conditions as it may deem best; Provided, that no application for probation shall be
entertained or granted if the defendant has perfected an appeal from the judgment
of conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine
only. An application for probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
The reason underlying the amendment was amply articulated in the preambulatory clauses
of P.D. No. 1990, thus:
WHEREAS, it has been the sad experience that persons who are convicted of offenses
and who may be entitled to probation still appeal the judgment of conviction even up to the
Supreme Court, only to pursue their application for probation when their appeal is
eventually dismissed;cralawlawlibrary
WHEREAS, the process of criminal investigation, prosecution, conviction and appeal
entails too much time and effort, not to mention the huge expenses of litigation, on the part
of the State;cralawlawlibrary
WHEREAS, the time, effort and expenses of the Government in investigating and
prosecuting accused persons from the lower courts up to the Supreme Court, are
oftentimes rendered nugatory when, after the appellate Court finally affirms the judgment of
conviction, the defendant applies for and is granted probation;cralawlawlibrary
xxxx
In Almero v. People,17 the Court stated that the Probation Law was amended "precisely to
put a stop to the practice of appealing from judgments of conviction - even if the sentence
is probationable - for the purpose of securing an acquittal and applying for the probation
only if the accused fails in his bid." In Sable v. People,18the Court elucidated that the
requirement that an accused must not have appealed his conviction before he can avail of
probation, outlaws the element of speculation on the part of the accused - to wager on the
result of his appeal - that when his conviction is finally affirmed on appeal, the moment of
truth well-nigh at hand, and the service of his sentence inevitable, he now applies for
probation as an "escape hatch," thus, rendering nugatory the appellate court's affirmance
of his conviction.
Resultantly, under Section 4 of P.D. No. 968 as amended, the accused is given the
choice of appealing his sentence or applying for probation. If he appeals, he cannot
later apply for probation. If he opts for probation, he cannot appeal.
Going back to the case at bench, I am of the considered view that Mustapha can apply for
probation. Mustapha, just like the petitioner in the Colinares case, did not have a choice
between appeal and probation when the trial court convicted him of a wrong offense. The
trial court's erroneous conviction of Mustapha for Violation of Section 5(b), Article III of R.A.
No. 7610 and the imposition of a prison term often (10) years of prision mayor, as
minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal,
as maximum, deprived him of the choice to pursue an application for probation considering
that the maximum probationable imprisonment under the Probation Law was only up to six
(6) years.
In the Colinares case, the petitioner was convicted by the trial court of Frustrated Homicide
and sentenced him to suffer imprisonment from two (2) years and four (4) months of prision
correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum,
but later, on appeal, this Court found him guilty only of Attempted Homicide, and sentenced
him to suffer an indeterminate penalty from four (4) months of arresto mayor, as minimum,
to two (2) years and four (4) months of prision correccional, as maximum. Verily, because
of the stiff penalties imposed against both Mustapha and Arnel Colinares by the trial
courts, they had no way of obtaining relief except by appealing their respective judgments.
In the Colinares case, the Court resolved that it is but fair to allow the petitioner the right to
apply for probation under the reduced penalty upon remand of the case to the RTC. I see
no reason why the case of Mustapha should be treated differently considering that his
sentence was reduced by the CA to an indeterminate penalty of six (6) months of arresto
mayor, as minimum to four (4) years and two (2) months of prision correccional, as
maximum. By appealing the merits of the case, together with the conformity of the OSG,
the CA found Mustapha guilty only of the crime of Acts of Lasciviousness with a penalty
well within the probationable period.
It bears stressing that the evil of speculation and opportunism on the part of the accused
sought to be curbed by the amendment in P.D. No. 1990 was not present in the case at
bench inasmuch as the penalty imposed by the RTC against Mustapha was not
probationable at the outset. Besides, nowhere in the amendatory decree does it state or
even hint that in limiting the accused to the choice of either appealing from the decision of
the trial court or applying for probation, the purpose is to deny him of the right to apply for
probation in cases like the one at bench where he became eligible for probation only
because his sentence was reduced on appeal. To repeat, the purpose of the amendment is
simply to prevent speculation or opportunism on the part of the accused who, although
already eligible for probation, does not at once apply for probation, but did so only after
failing in his appeal.19
The CA explained that in the Colinares case, the petitioner therein raised as sole issue the
correctness of the penalty imposed while the OSG contends that the Colinares case is not
squarely applicable to present case because Mustapha never admitted guilt and did not
limit the issue on appeal to the correctness of the penalty meted out by the trial court.
These arguments are specious.
Firstly, in the Colinares case, the accused therein did not only question the correctness of
the penalty, but also the merits of the case by arguing that he should be exonerated due to
the presence of the justifying circumstance of self-defense. The Court did not agree with
his defense but nevertheless found him guilty of a lesser offense of attempted homicide
with a probationable penalty. Just like in this case, Mustapha appealed the merits of the
case by questioning the appreciation of evidence of the trial court.
Secondly, it cannot be said with absolute certainty that the sole and exclusive motivation of
Mustapha for lodging the appeal was his desire to be acquitted. Proof of this is that after
Mustapha was found guilty by the CA of acts of lasciviousness and sentenced to a lesser
penalty which thereby qualified him for probation, he did not appeal further although he
could have done so. What he did, instead, was to accept the new sentence and seek a
declaration from the CA that he is entitled to apply for probation upon remand of the case
to the RTC for execution. This shows that he is willing to accept the conviction of crime,
albeit for a lower penalty.
Thirdly, regardless of the whether an accused appealed the merits of the case or simply
the correctness of the penalty imposed, the Court should not distinguish insofar as the
application of the Probation Law is concerned. The Court cannot expect Mustapha to forgo
the remedy of appeal and admit guilt over a crime he did not commit due to an erroneous
appreciation of the merits of the case. He should not accept the erroneous judgment of the
RTC for, in truth, he only committed Acts of Lasciviousness with a maximum penalty of four
(4) years and two (2) months. Mustapha should not be made to suffer through the forfeiture
of the right to apply for probation simply because the RTC had blundered. In
the Colinares case, it was written:
The Probation Law never intended to deny an accused his right to probation through no
fault of his. The underlying philosophy of probation is one of liberality towards the accused.
Such philosophy is not served by a harsh and stringent interpretation of the statutory
provisions. As Justice Vicente V. Mendoza said in his dissent in Francisco, the Probation
Law must not be regarded as a mere privilege to be given to the accused only where it
clearly appears he comes within its letter; to do so would be to disregard the teaching in
many cases that the Probation Law should be applied in favor of the accused not because
it is a criminal law but to achieve its beneficent purpose.
There are views that Mustapha should not be allowed to apply for probation anchored on
the following grounds:
1] the Colinares case should not be made to apply to this case because it is not yet an
established doctrine and the pronouncements therein were not supported by the text of the
Probation Law; and
2] even if the ratiocination in the Colinares case is sound, still, it finds no application in the
case at bench inasmuch as the CA erred in modifying the judgment of the RTC.
I disagree.
Adherence to the Colinares case is dictated by this Court's policy of securing and
maintaining certainty and stability of judicial decisions in accordance with the legal
maxim stare decisis et non quieta movere (or simply, stare decisis which means "follow
past precedents and do not disturb what has been settled"). The principle, entrenched
under Article 820 of the Civil Code, evokes the general rule that, for the sake of certainty, a
conclusion reached in one case should be doctrinally applied to those that follow if the
facts are substantially the same, even though the parties may be different.21 Otherwise
stated, once a point of law has been established by the Court, that point of law will,
generally, be followed by the same court and by all courts of lower rank in subsequent
cases where the same legal issue is raised.
Stare decisis proceeds from the first principle of justice that, absent powerful countervailing
considerations, like cases ought to be decided alike.22 Hence, where, as in this case, the
same question relating to the same event have been put forward by parties similarly
situated as in a previous case litigated and decided by a competent court, the rule of stare
decisis is a bar to any attempt to relitigate the same issue.23 Significantly, the respondent
has not shown any strong and compelling reason to persuade the Court that the manner of
disposition in Colinares v. Peoplepertaining to the matter of probation should not be
observed and adopted in the case at bench.
Anent the second ground, suffice it to state that the June 28, 2012 Decision of the CA
convicting Mustapha for Acts of Lasciviousness became final and executory only upon the
failure of either party to question the decision. On the other hand, after Mustapha received
a copy of the aforesaid decision on July 6, 2012, he did not further appeal the same to this
Court. Instead, he filed before the CA on July 23, 2012, a manifestation with motion to
allow him to apply for probation upon remand of the case to the trial court for execution. To
review the correctness of the final and executory June 28, 2012 Decision of the CA at this
point is no longer permissible in the light of the constitutional interdict against double
jeopardy.
Not surprisingly, the OSG did not question the decision anymore as it conformed to its own
recommendation that the petitioner should be found guilty of Acts of Lasciviousness only.24
Let it be underscored that the primodial consideration of this Court in allowing the petitioner
in the Colinares case to apply for probation was one of fairness. Here, considering that the
sentence of the RTC against Mustapha was modified by the CA to a probationable range
upon recommendation of the OSG, and that he is not one of those disqualified offenders
under Section 9 of P.D. No. 968 as amended, he should not be denied his right to apply for
probation in the spirit of fairness. To rule otherwise would send Mustapha straight to jail
and, thus, robbing him of the chance to undergo reformation and rehabilitation as a
penitent offender, defeating the avowed purpose and objective of the Probation Law.
IN VIEW OF ALL THE FOREGOING, I recommend that the petition be GRANTED; that
the assailed September 3, 2012 and March 13, 2013 Resolutions of the Court of Appeals
(CA) in CA-G.R. CR No. 31963 be REVERSED and SET ASIDE; and that petitioner
Mustapha Dimakuta y Maruhon @ Boyet be declared as entitled to apply for probation
within fifteen (15) days from notice that the record of the case has been remanded for
execution to the Regional Trial Court of Las Pinas City, Branch 199, in Criminal Case No.
05-1098.
Endnotes:
1
Penned by Associate Justice Myrna V. Garcia-Fernandez with Associate Justice Vicente
S.E. Veloso and Associate Justice Stephen C. Cruz, concurring; rollo, pp. 26-29.
2
Id. at 31.
3
678 Phil. 482 (2011).
4
Penned by Judge Joselito Vibandor; rollo, pp. 33-43.
5
Id. at 77-1114.
6
Id. at 102-107.
7
Penned by Associate Justice Myra V. Garcia-Fernandez with Associate Vicente S.E. Fiat justitia mat caelum.1ChanRoblesVirtualawlibrary
Veloso and Stephen C. Cruz, concurring; id. at 117-130. The accused touched the breast and vagina of a 16-year-old minor.
8
601 Phil. 373 (2009). The Court of Appeals failed to appreciate that this would not have been possible without
intimidation or coercion. It lowered the penalty from a minimum imprisonment often (10)
9
Rollo, pp. 129-130. years2 to a minimum imprisonment of six (6) months.3 If the Decision of the Court of
Appeals is upheld, he will not serve a single day in prison for his acts. This is not what the
10
Id. at 132-142. law requires. This is definitely not what it intends.
11
453 Phil. 270 (2003). Probation and appeal are mutually exclusive remedies. Probation is a mere privilege
granted only to offenders who are willing to be reformed and rehabilitated. It cannot be
12
Rollo, p. 29. availed of when an offender has already perfected his or her appeal from the judgment of
conviction.
13
Id. at 14.
Generally, after a finding of fact by a trial court of the guilt of an accused beyond
14
Id. at 169-182. reasonable doubt, society is entitled to the expectation that he or she serve his or her
sentence. In this sense, probation is a mere privilege: an exception granted to a general
15
Moreno v. Commission on Elections, 530 Phil. 279, 290 (2006). rule that is both reasonable and just.
16
Colinares v. People, supra note 3, at 497. I submit that Colinares v. People4 should not be made to apply to this case for two
reasons. First, Colinares has not yet become established doctrine, and the dissents of the
17
G.R. No. 188191, March 12, 2014. case offer a sound and logical approach to the issue. Colinares read an outcome, which is
not supported by the text of law. Second, even assuming that the ratio in Colinares is good
18
602 Phil. 989, 997 (2009). law, it finds no application to this case since the Court of Appeals erred in modifying the
judgment of the trial court.
19
Francisco v. Court of Appeals, 313 Phil. 241, 264 (1995).
20
Article 8. Judicial decisions applying or interpreting the laws or the Constitution shall I
form a part of the legal system of the Philippines.
Probation was first established in this jurisdiction through Act No. 42215 dated August 7,
21
Belgica v. Ochoa, Jr., G.R. No. 208566, November 19, 2013, 710 SCRA 1, 101-102. 1935. According to the provisions of the Act, those who have not been convicted of any
offense punishable by death or life imprisonment6 may be placed under probation after the
22
Ayala Corporation v. Rosa-Diana Realty and Development Corporation, 400 Phil. 511, sentence becomes final and before the offender begins the service of sentence.7
521 (2000).
The current law on probation is Presidential Decree No. 968,8 which was signed into law
23
Chinese Young Men's Christian Association of the Philippine Islands v. Remington Steel on July 24, 1976. An accused was originally allowed to apply for probation before the trial
Corporation, 573 Phil. 320, 337 (2008). court even pending appeal, as long as notice was given to the Court of Appeals where the
appeal was pending.9 According to Section 4 of the Decree:
24
Rollo, p. 102.

SECTION 4. Grant of Probation. Subject to the provisions of this Decree, the court may,
after it shall have convicted and sentenced a defendant and upon application at any time of
said defendant, suspend the execution of said sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem best.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine
CONCURRING OPINION only. An application for probation shall be filed with the trial court, with notice to the
appellate court if an appeal has been taken from the sentence of conviction. The filing of
the application shall be deemed a waiver of the right to appeal, or the automatic withdrawal
of a pending appeal.
LEONEN, J.:
An order granting or denying probation shall not be appealable. (Emphasis supplied)
The Decree, however, declared that probation cannot be availed of by the following
offenders:
SECTION 9. Disqualified Offenders. The benefits of this Decree shall not be extended
to those:
(a) sentenced to serve a maximum term of imprisonment of more than six
years;cralawlawlibrary
(b) convicted of subversion or any crime against the national security or the public
order;cralawlawlibrary
(c) who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or a fine of not less than Two
Hundred Pesos;cralawlawlibrary
(d) who have been once on probation under the provisions of this Decree; and
(e) who are already serving sentence at the time the substantive provisions of this Decree
became applicable pursuant to Section 33 hereof.10
Section 4 of the Decree was amended twice: first, by Presidential Decree No. 1257 on
December 1, 1977, and again, by Presidential Decree No. 1990 on October 5, 1985.
The amendments of Presidential Decree No. 1257 increased the period when an
application for probation may be granted, thus:
Section 1. Section 4 of Presidential Decree No. 968, otherwise known as the Probation
Law of 1976, is hereby amended to read as follows:chanRoblesvirtualLawlibrary
"Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court may, after it
shall have convicted and sentenced a defendant but before he begins to serve his
sentence and upon his application, suspend the execution of said sentence and place the
defendant on probation for such period and upon such terms and conditions as it may
deem best.ChanRoblesVirtualawlibrary
The prosecuting officer concerned shall be notified by the court of the filling [sic] of the
application for probation and he may submit his comment on such application within ten
days from receipt of the notification.ChanRoblesVirtualawlibrary
Probation may be granted whether the sentence impose a term of imprisonment or a fine
with subsidiary imprisonment in case of insolvency. An application for probation shall be
filed with trial court, with notice to appellate court if an appeal has been taken from the
sentence of conviction. The filling [sic] of the application shall be deemed a waiver of the
right to appeal, or the automatic withdrawal of a pending appeal. In the latter casefj
however, if the application is filed on or after the date of the judgment of the appellate
court, said application shall be acted upon by the trial court on the basis of the judgment of
the appellate court.
An order granting or denying probation shall not be appealable." (Emphasis supplied)
In 1985, however, a substantial amendment was made to the Probation Law, which
categorically prohibited applications for probation if the appeal has been perfected:
WHEREAS, it has been the sad experience that persons who are convicted of offenses
and who may be entitled to probation still appeal the judgment of conviction even up to the
Supreme Court, only to pursue their application for probation when their appeal is
eventually dismissed;cralawlawlibrary
WHEREAS, the process of criminal investigation, prosecution, conviction and appeal
entails too much time and effort, not to mention the huge expenses of litigation, on the part
of the State;cralawlawlibrary
WHEREAS, the time, effort and expenses of the Government in investigating and
prosecuting accused persons from the lower courts up to the Supreme Court, are
oftentimes rendered nugatory when, after the appellate Court finally affirms the judgment of
conviction, the defendant applies for and is granted probation;cralawlawlibrary
WHEREAS, probation was not intended as an escape hatch and should not be used to
obstruct and delay the administration of justice, but should be availed of at the first
opportunity by offenders who are willing to be reformed and rehabilitated;
WHEREAS, it becomes imperative to remedy the problems above-mentioned confronting
our probation system;cralawlawlibrary
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue
of the powers vested in me by the by Constitution, do hereby decree:
SECTION 1. Section 4 of Presidential Decree No. 968 is hereby amended to read as
follows:chanRoblesvirtualLawlibrary
"SEC. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may,
after it shall have convicted and sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for such period and upon such terms and
conditions as it may deem best; Provided, That no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the judgment of
conviction.ChanRoblesVirtualawlibrary
"Probation may be granted whether the sentence imposes a term of imprisonment or a fine
only. An application for probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
"An order granting or denying probation shall not be appealable."11 (Emphasis supplied)
Thus, the present law makes an appeal and an application for probation mutually exclusive
remedies. An accused who has been sentenced to a penalty of less than six (6) years of
imprisonment may only apply for probation if he or she has not yet perfected his or her
appeal from the judgment of conviction. There are no exceptions to the rule in the text of
the law. The intent to make the choices exclusive from each other is seen in the context of
the history of the amendments to this law.
The amendment to Section 4 of the Probation Law has also been the subject of several
cases before this court. Two cases, in particular, established the following principles:
1. The Probation Law is not a penal statute that may be interpreted liberally in favor
of the accused; and
2. Section 4 of the Probation Law clearly mandates that no application for probation
shall be entertained or granted if the defendant has perfected the appeal from the
judgment of conviction.
The first of these cases applied Section 4 as it is stated in the law, effectively ruling that the
law does not admit exceptions. In Llamado v. Court of Appeals,12 Ricardo A. Llamado
(Llamado) was convicted by the trial court of violation of Batas Pambansa Bilang 22 and
sentenced to imprisonment of one (1) year of prision correccional.13
After the decision had been read to him, Llamado orally manifested before the trial court
that he was taking an appeal. The trial court forwarded the records of the case to the Court
of Appeals on the same day. Llamado received notices from the Court of Appeals to file his
Appellant's Brief, to which he secured several extensions.14
While his Appellant's Brief was being finalized by his counsel on record, Llamado sought
advice from another lawyer.15 Heeding the advice of his new counsel, he filed before the
trial court a Petition for Probation under the Probation Law.16 The Petition was not
accepted by the trial court as "the records of [his] case had already been forwarded to the
Court of Appeals."17 Llamado then filed a Manifestation and Petition for Probation before
the Court of Appeals, asking it to grant his Petition or, in the alternative, to remand the
Petition to the trial court along with the records of the case.18 While the Petition was
pending before the Court of Appeals, he filed a Manifestation and Motion formally
withdrawing his appeal "conditioned . . . on the approval of his Petition for Probation."19
The Court of Appeals denied the Petition, which prompted Llamado to file a Petition for
Review before this court, on the sole issue of whether his application for probation was
filed after he had already perfected his appeal.20
This court, however, affirmed the Court of Appeals and ruled that Llamado already
perfected his appeal when he orally manifested in open court his intention to appeal.21 As
such, he cannot be allowed to apply for probation by virtue of Section 4 of Presidential
Decree No. 968, as amended by Presidential Decree No. 1990.22 This court was also
hesitant to liberally interpret Section 4 of Presidential Decree No. 968 since the Decree
was not a penal statute.23 The court stated:
Turning to petitioner's invocation of "liberal interpretation" of penal statutes, we note at the
outset that the Probation Law is not a penal statute. We, however, understand petitioner's
argument to be really that any statutory language that appears to favor the accused in a
criminal case should be given a "liberal interpretation." Courts, however, have no authority
to invoke "liberal interpretation" or "the spirit of the law" where the words, of the statute
themselves, and as illuminated by the history of that statute, leave no room for doubt or
interpretation. We do not believe that "the spirit of law" may legitimately be invoked to set
at naught words which have a clear and definite meaning imparted to them by our
procedural law. The "true legislative intent" must obviously be given effect by judges and
all others who are charged with the application and implementation of a statute. It is
absolutely essential to bear in mind, however, that the spirit of the law and the intent that is
to be given effect are to be derived from the words actually used by the law-maker, and not
from some external, mystical or metajuridical source independent of and transcending the
words of the legislature.
The Court is not here to be understood as giving a "strict" interpretation" rather than a
"liberal" one to Section 4 of the Probation Law of 1976 as amended by P.D. No. 1990.
"Strict" and "liberal" are adjectives which too frequently impede a disciplined and principled
search for the meaning which the law-making authority projected when it promulgated the
language which we must apply. That meaning is clearly visible in the text of Section 4, as
plain and unmistakable as the nose on a man's face. The Court is simply reading Section 4
as it is in fact written. There is no need for the involved process of construction that
petitioner invites us to engage in, a process made necessary only because petitioner
rejects the conclusion or meaning which shines through the words of the statute. The first
duty of a judge is to take and apply a statute as he finds it, not as he would like it to be.
Otherwise, as this Court in Yangco v. Court of First Instance of Manila warned, confusion
and uncertainty in application will surely follow, making, we might add, stability and
continuity in the law much more difficult to achieve[.]24 (Emphasis supplied)
The issue of whether an application for probation is allowed after the perfection of an
appeal was again taken up by this court in Francisco v. Court of Appeals.25cralawred
In Francisco, Pablo C. Francisco (Francisco) was convicted by the Metropolitan Trial Court
of four (4) counts of grave oral defamation and sentenced to imprisonment of "one (1) year
and one (1) day to one (1) year and eight (8) months of prision correccional 'in each crime
committed on each date of each case[.]'"26 On appeal before the Regional Trial Court, the
trial court affirmed his conviction but appreciated a mitigating circumstance in his favor. His
penalty was reduced to a straight penalty of eight (8) months of imprisonment. This
Decision became final and executory upon his failure to file an appeal. Before the Decision
could be executed, however, he applied for probation before the Metropolitan Trial Court.
His application was denied, as was his subsequent Petition for Certiorari before the Court
of Appeals.27
Francisco then brought a Petition before this court, arguing that "he [had] not yet lost his
right to avail [himself] of probation[.]"28 He argued that the judgment of the Metropolitan
Trial Court was such that he could not be qualified for probation, which was precisely the
reason for his appeal, so that he could avail himself of the benefits of probation.29
This court, speaking through Justice Bellosillo, denied his Petition and ruled that Francisco
was no longer eligible for probation.30 This court stated that:
Probation is a mere privilege, not a right. Its benefits cannot extend to those not expressly
included. Probation is not a right of an accused, but rather an act of grace and clemency or
immunity conferred by the state which may be granted by the court to a seemingly
deserving defendant who thereby escapes the extreme rigors of the penalty imposed by
law for the offense of which he stands convicted. It is a special prerogative granted by law
to a person or group of persons not enjoyed by others or by all. Accordingly, the grant of
probation rests solely upon the discretion of the court which is to be exercised primarily for
the benefit of organized society, and only incidentally for the benefit of the accused. The
Probation Law should not therefore be permitted to divest the stale or its government of
any of the latter's prerogatives, rights or remedies, unless the intention of the legislature to
this end is clearly expressed, and no person should benefit from the terms of the law who
is not clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no
application for probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction," nor Llamado v. Court of Appeals which interprets
the quoted provision, offers any ambiguity or qualification. As such, the application of the
law should not be subjected to any to suit the case of petitioner. While the proposition that
an appeal should not bar the accused from applying for probation if the appeal is solely to
reduce the penalty to within the probationable limit may be equitable, we are not yet
prepared to accept this interpretation under existing law and jurisprudence.31(Emphasis
supplied)
Moreover, this court ruled that the penalties imposed by the Metropolitan Trial Court were
already probationable since "the sum of the multiple prison terms imposed against an
applicant should not be determinative of his [or her] eligibility for, nay his [or her]
disqualification from, probation."32 It also pointed out that Francisco appealed his
conviction before the Regional Trial Court not to reduce his penalty to make him eligible for
probation but "to assert his innocence."33
Justice V. V. Mendoza, however, took exception to the majority view and voted to reverse
the judgment of the Court of Appeals.34 In his Dissenting Opinion, he stated that:
[I]f under the sentence given to him an accused is not qualified for probation, as when the
penalty imposed on him by the court singly or in their totality exceeds six (6) years but on
appeal the sentence is modified so that he becomes qualified, I believe that the accused
should not be denied the benefit of probation.
Before its amendment by P.D. No. 1990, the law allowed even encouraged
speculation on the outcome of appeals by permitting the accused to apply for probation
after he had appealed and failed to obtain an acquittal. It was to change this that Sec. 4
was amended by P.D. No. 1990 by expressly providing that "no application for probation
shall be entertained or granted if the defendant has perfected the appeal from the
judgment of conviction." For an accused, despite the fact that he is eligible for probation,
may be tempted to appeal in the hope of obtaining an acquittal if he knows he can any way
apply for probation in the event his conviction is affirmed.
There is, however, nothing in the amendatory Decree to suggest that in limiting the
accused to the choice of either appealing from the decision of the trial court or applying for
probation, the purpose is to deny him the right to probation in cases like the one at bar
where he becomes eligible for probation only because on appeal his sentence is
reduced. The purpose of the amendment, it bears repeating, is simply to prevent
speculation or opportunism on the part of an accused who, although eligible for probation,
does not at once apply for probation, doing so only after failing in his appeal.35 (Emphasis
supplied, citations omitted)
Justice V. V. Mendoza also submitted that the original sentence imposed on Francisco
should be taken in its totality to determine whether he was qualified for probation.36 In his
opinion, the policy of the law treats "multiple sentences imposed in cases which are jointly
tried and decided37 as only one sentence.
Justice Vitug also offered a Separate Opinion, in that he agreed with Justice V. V.
Mendoza that an accused originally not qualified for probation must not be denied the
benefit of probation if on appeal, the sentence was reduced within the probationable
period.38 He, however, concurred with the majority that "the number of offenses is
immaterial as long as all the penalties imposed, taken separately, are within the
probationable period."39
The exception suggested by Justice V. V. Mendoza, i.e., that the accused should be
allowed to apply for probation if an originally unprobationable offense is reduced to a
probationable one on appeal, would ultimately become this court's ratio in Colinares.
With all due respect, Colinares does not apply to this case.
II
In Colinares, the accused, Arnel Colinares (Colinares), was found guilty by the Regional
Trial Court of frustrated homicide. He was sentenced to an indeterminate penalty of two (2)
years and four (4) months of prision correccional as minimum to six (6) years and one (1)
day of prision mayor as maximum.40
Colinares appealed before the Court of Appeals invoking self-defense. He also
alternatively sought conviction for the lesser crime of attempted homicide. The Court of
Appeals denied his appeal which prompted him to file a Petition for Review before this
court.41
During the pendency of the case, this court required Colinares and the Office of the
Solicitor General to submit their respective positions on whether, assuming that Colinares
was only guilty of the lesser crime of attempted homicide, "he could still apply for probation
upon remand of [this] case to the trial court."42 Colinares argued that he was eligible while
the Office of the Solicitor General argued for his ineligibility.43
This court eventually ruled that Colinares was only guilty of attempted homicide which was
punishable by imprisonment of four (4) months of arresto mayor as minimum and two (2)
years and four (4) months of prision correccional as maximum.44 This court also found
Colinares eligible for probation despite having appealed his conviction.45 The Decision,
penned by Justice Abad, stated that the accused should not be denied the right of
probation if it was through the fault of the trial court that he did not have a chance to apply
for probation:
. . . Arnel did not appeal from a judgment that would have allowed him to apply for
probation. He did not have a choice between appeal and probation. He was not in a
position to say, ''By taking this appeal, I choose not to apply for probation. " The stiff
penalty that the trial court imposed on him denied him that choice. Thus, a ruling that
would allow Arnel to now seek probation under this Court's greatly diminished penalty will
not dilute the sound ruling in Francisco. It remains that those who will appeal from
judgments of conviction, when they have the option to try for probation, forfeit their right to
apply for that privilege.

Besides, in appealing his case, Arnel raised the issue of correctness of the penalty
imposed on him. He claimed that the evidence at best warranted his conviction only for
attempted, not frustrated, homicide, which crime called for a probationable penalty. In a
way, therefore, Arnel sought from the beginning to bring down the penalty to the level
where the law would allow him to apply for probation.
In a real sense, the Court's finding that Arnel was guilty, not of frustrated homicide, but only
of attempted homicide, is an original conviction that for the first time imposes on him a
probationable penalty. Had the RTC done him right from the start, it would have found him
guilty of the correct offense and imposed on him the right penalty of two years and four
months maximum. This would have afforded Arnel the right to apply for probation.
The Probation Law never intended to deny an accused his right to probation through no
fault of his. The underlying philosophy of probation is one of liberality towards the accused.
Such philosophy is not served by a harsh and stringent interpretation of the statutory
provisions. As Justice Vicente V. Mendoza said in his dissent in Francisco, the Probation
Law must not be regarded as a mere privilege to be given to the accused only where it
clearly appears he comes within its letter; to do so would be to disregard the teaching in
many cases that the Probation Law should be applied in favor of the accused not because
it is a criminal law but to achieve its beneficent purpose.46 (Emphasis supplied)
This Decision by the court was contentious in the least, with this court's En Bane voting 9-
647in favor of the ponencia and with Justice Peralta and Justice Villarama offering their
Separate Opinions.
With all due respect, Justice Villarama correctly stated in Colinares that an application of
liberality in the interpretation of Section 4 is "misplaced."48
It is a settled principle of statutory construction that only penal statutes are construed
liberally in favor of the accused.49 It is also equally settled that the Probation Law is not a
penal statute.50 The provisions of the law, including Section 4, should be interpreted as
stated, which is that once an appeal has been perfected by the accused, he or she is not
anymore entitled to the benefits of probation.
The Probation Law intends to benefit only penitent offenders, or those who admit to their
offense and are willing to undergo rehabilitation. According to Section 2 of the Probation
Law:
Section 2. Purpose. This Decree shall be interpreted so as to:
(a) promote the correction and rehabilitation of an offender by providing him with
individualized treatment;cralawlawlibrary
(b) provide an opportunity for the reformation of a penitent offender which might be less
probable if he were to serve a prison sentence; and
(c) prevent the commission of offenses.ChanRoblesVirtualawlibrary
Moreover, the law was amended precisely to prohibit those offenders from taking
advantage of the benefits of the Probation Law when their appeals for innocence are
rendered futile. The first Whereas clause of Presidential Decree No. 1990 states:
WHEREAS, it has been the sad experience that persons who are convicted of offenses
and who may be entitled to probation still appeal the judgment of conviction even up to the
Supreme Court, only to pursue their application for probation when their appeal is
eventually dismissed;
It is thus abhorrent to the intention of the law if those who have appealed their convictions,
i.e., those who asked the court to review their convictions in the hope of securing an
acquittal, are still allowed to apply for probation.
In these situations, the privilege of probation becomes an "escape hatch"51 for those whose
appeals were found unmeritorious. In Sable v. People, et al.:52
The law expressly requires that an accused must not have appealed his conviction before
he can avail himself of probation. This outlaws the element of speculation on the part of the
accused to wager on the result of his appeal that when his conviction is finally
affirmed on appeal, the moment of truth well nigh at hand and the service of his sentence
inevitable, he now applies for probation as an "escape hatch," thus rendering nugatory the
appellate court's affirmance of his conviction. Consequently, probation should be availed of
at the first opportunity by convicts who are willing to be reformed and rehabilitated; who
manifest spontaneity, contrition and remorse.
This was the reason why the Probation Law was amended, precisely to put a stop to the
practice of appealing from judgments of conviction even if the sentence is probationable,
for the purpose of securing an acquittal and applying for the probation only if the accused
fails in his bid.53(Emphasis supplied)
Similarly, Justice Villarama stated in his Separate Opinion in Colinares that:
It must be stressed that in foreclosing the right to appeal his conviction once the accused
files an application for probation, the State proceeds from the reasonable assumption that
the accused's submission to rehabilitation and reform is indicative of remorse. And in
prohibiting the trial court from entertaining an application for probation if the accused has
perfected his appeal, the State ensures that the accused takes seriously the privilege or
clemency extended to him, that at the very least he disavows criminal tendencies.
Consequently, this Court s grant of relief to herein accused whose sentence was reduced
by this Court to within the probationable limit, with a declaration that accused may now
apply for probation, would diminish the seriousness of that privilege because in questioning
his conviction accused never admitted his guilt. It is of no moment that the trial court's
conviction of petitioner for frustrated homicide is now corrected by this Court to only
attempted homicide. Petitioner's physical assault on the victim with intent to kill is unlawful
or criminal regardless of whether the stage of commission was frustrated or attempted
only. Allowing the petitioner the right to apply for probation under the reduced penalty
glosses over the fact that accused's availment of appeal with such expectation amounts to
the same thing: speculation and opportunism on the part of the accused in violation of the
rule that appeal and probation are mutually exclusive remedies.54 (Emphasis supplied)
The underlying theory, therefore, of the amendment to Section 4 is that the grant of
probation to an accused whose sentence was reduced must proceed from an accused's
remorse and willingness to undergo rehabilitation, which is antithetical to the filing of an
appeal to seek the reversal of his or her conviction.
A more lenient approach was offered by Justice Peralta in Colinares. He was more open to
finding exceptions to the rule and was of the opinion that what Section 4 of the Probation
Law prohibited are only appeals from the judgment of conviction.55He opined that
probation, even after one's filing of the notice of appeal, should be allowed in the following
instances:
1. When the appeal is merely intended for the correction of the penalty imposedby the
lower court, which when corrected would entitle the accused to apply for probation; and
2. When the appeal is merely intended to review the crime for which the accused was
convicted and that the accused should only be liable to the lesser offense which is
necessarily included in the crime for which he was originally convicted and the proper
penalty imposable is within the probationable period.56(Emphasis in the original)
Justice Peralta stated that in these instances, the appeal is intended to question only the
propriety of the penalty imposed, rather than review the merits of the case.57 He believed,
however, that probation should not be granted in the following instances:
1. When the accused is convicted by the trial court of a crime where the penalty imposed is
within the probationable period or a fine, and the accused files a notice of appeal; and
2. When the accused files a notice of appeal which puts the merits of his conviction in
issue, even if there is an alternative prayer for the correction of the penalty imposed by the
trial court or for a conviction to a lesser crime, which is necessarily included in the crime in
which he was convicted where the penalty is within the probationable period.58 (Emphasis
and underscoring in the original)
This case is one of the instances mentioned by Justice Peralta wherein an application
of Colinares would violate the spirit and intent of the law.
The facts state that petitioner appealed his conviction before the Court of Appeals on the
basis that the trial court erred in giving credence to the victim's testimony as it was laced
with inconsistencies and improbabilities. He argued that even if he did commit lascivious
conduct against the victim, he still should not be charged with violation of Article 336 of the
Revised Penal Code since the prosecution failed to establish the essential elements of the
crime. This is tantamount to an assertion of his innocence.59
For him to still be eligible for probation, his appeal should have argued that the trial court
erred in finding him guilty of violation of Republic Act No. 7610 since his offense was
merely acts of lasciviousness.
The first appeal determines whether he comes under the exception.
Petitioner's appeal before the Court of Appeals was made for the purpose of securing an
acquittal; it was not for the purpose of lowering his penalty to one within the probationable
period. To allow him to apply for probation would be to disregard the intent of the law: that
appeal and probation are mutually exclusive remedies.
III
Even assuming that the ratio in Colinares is sound, it finds no application in this case
simply because the Court of Appeals erroneously modified the offense.
Petitioner had been convicted by the trial court of violation of Article III, Section 5(b) of
Republic Act No. 7610 for allegedly molesting a 16-year-old girl. The provision states:
Section 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female,
who for money, profit, or any other consideration or due to the coercion or influence of any
adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed
to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subject to other sexual abuse; Provided, That when the victim is
under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may be; Provided, That the penalty for
lascivious conduct when the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period[.]
In Garingarao v. People,60 the elements of this offense are as follows:
1. The accused commits the act of sexual intercourse or lascivious
conduct;cralawlawlibrary
2. The said act is performed with a child exploited in prostitution or subjected to other
sexual abuse; and
3. The child, whether male or female, is below 18 years of age.61
Lascivious conduct is defined as:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin,
breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or
mouth, of any person, whether of the same or opposite sex, with the intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of a person.62
Here, petitioner is accused of touching the breast and vagina of a 16-year-old girl.63On
appeal, however, the Court of Appeals modified the offense, finding that the prosecution
failed to prove that the lascivious conduct was done with coercion or intimidation.64 It found
petitioner to be guilty only of acts of lasciviousness under Article 336 of the Revised Penal
Code.65 The provision states:
ARTICLE 336. Acts of Lasciviousnes. - Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by prision correccional.
The Court of Appeals, however, erred in modifying the offense. According to Navarrete v.
People,66 the elements of Article 336 of the Revised Penal Code are:
(1) The offender commits any act of lasciviousness or lewdness;cralawlawlibrary
(2) It is done under any of the following circumstances:
a. By using force or intimidation; or.
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age; and
(3) The offended party is another person of either sex.67 (Emphasis supplied)
In the first place, it is illogical for the Court of Appeals to have found the offense committed
with force or intimidation and, at the same time, without coercion or intimidation. Second,
the fact that the victim in this case was a minor who was molested by an adult is enough to
prove that the victim's free will was subdued in view of her minority and immaturity. The
moral ascendancy of the adult offender was enough to intimidate the minor victim. In
Garingarao:
The Court has ruled that a child is deemed subject to other sexual abuse when the child is
the victim of lascivious conduct under the coercion or influence of any adult. In lascivious
conduct under the coercion or influence of any adult, there must be some form of
compulsion equivalent to intimidation which subdues the free exercise of the offended
party's free will.68 (Emphasis supplied)
Thus, petitioner was correctly found by the trial court guilty of violation of Article III, Section
5(b) of Republic Act No. 7610. Since this offense is punishable by reclusion temporal or an
imprisonment of more than six (6) years, petitioner is not eligible for probation.
Accordingly, I concur with the ponencia.
Endnotes:
1
"Let justice be done though the heavens fall."
2
Ponencia, p. 2. The Regional Trial Court sentenced petitioner to imprisonment often (10)
years prision mayor as minimum to seventeen (17) years, four (4) months and one (1)
day reclusion temporal as maximum.
3
Ponencia, p. 3. The Court of Appeals lowered the penalty to imprisonment of six (6)
months arresto mayor as minimum to four (4) years and two (2) months prision correctional
as maximum.
4
678 Phil. 482 (2011) [Per.(. Abad, En Banc].
5
An Act Establishing Probation for Persons, Eighteen Years of Age or Above, Convicted of
Certain Crimes by the Courts of the Philippine Islands; Providing Probation Officers
Therefor; and for Other Purposes.
6
Act No. 4221 (1935), sec. 8 provides:
SECTION 8. This Act shall not apply to persons convicted of offenses punishable by death
or life imprisonment; to those convicted of homicide, treason, conspiracy or proposal to
commit treason; to those convicted of misprision of treason, sedition or espionage; to those
convicted of piracy, brigandage, arson, or robbery in band; to those convicted of robbery
with violence on persons when it is found that they displayed a deadly weapon; to those
convicted of corruption of minors; to those who are habitual delinquents; to those who have
been once on probation; and to those already sentenced by final judgment at the time of
the approval of this Act.
7
Act No. 4221 (1935), sec. 1 provides:
SECTION 1. Whenever any person eighteen years of age or more at the time of
committing a criminal offense or misdemeanor is convicted and sentenced by a Court of
First Instance or by the Supreme Court on appeal, for such offense or misdemeanor, the
proper Court of First Instance may after the sentence has become final and before the
defendant has begun the service thereof, suspend the execution of said sentence and
place the defendant on probation for such period as it may determine not less nor
exceeding the minimum and maximum periods prescribed in this Act. No person, however,
shall be placed on probation until an investigation and report by the probation officer shall
have been made to the court of the circumstances of his offense, his criminal record, if any,
and his social history and until the provincial fiscal shall have been given an opportunity to
be heard. The court shall enter in the minutes the reasons for its action.
8
Establishing a Probation System, Appropriating Funds Therefor and for Other Purposes.
9
Pres. Decree No. 968 (1976), sec. 4.
10
This section was amended by Batas Big. 76 dated June 13, 1980 to include offenders
sentenced to imprisonment of six years and one day. This amendment, however, was
repealed by Presidential Decree No. 1990 in 1985, which restored the original text of
Section 9 in Presidential Decree No. 968.
11
Pres. Decree No. 1990 (1985).
12
256 Phil. 328 (1989) [Per J. Feliciano, Third Division].
13
Id. at 332.
14
Id.
 38
J. Vitug, Separate Opinion in Francisco v. Court of Appeals, 313 Phil. 241, 277-278
15
Id. (1995) [Per J. Bellosillo, En Banc].
16 39
Id. at 332-333. Id. at 278.
17 40
Id. at 333. Colinares v. People, 678 Phil. 482, 491 (2011) [Per J. Abad, En Banc]
18 41
Id. Id.
19 42
Id. Id. at 492.
20 43
Id. at 333-334. Id.
21 44
Id. at 337. Id. at 501.
22 45
Id. at 337-339. Id.
23 46
Id. at 339. Id. at 499-500, citing Yusi, et al. v. Hon. Judge Morales, 206 Phil. 734, 740 (1983) [Per J.
Gutierrez, Jr., First Division] and J. Mendoza, Dissenting Opinion in Francisco v. Court of
24
Id. at 339-340. Appeals 313 Phil 241, 273 (1995) [Per J. Bellosillo, En Banc].
25 47
313 Phil. 241 (1995) [Per J. Bellosillo, En Banc]. Former Chief Justice Renato C. Corona and Associate Justices Antonio T. Carpio,
Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Mariano C. Del Castillo, Jose
26
Id. at 251. P. Perez, Jose C. Mendoza, and Bienvenido L. Reyes concurred in the ponencia.
Associate Justices Diosdado M. Peralta and Martin S. Villarama, Jr. dissented. Associate
27
Id. at 252. Justices Arturo D. Brion, Lucas P. Bersamin, Ma. Lourdes P. A. Sereno (now Chief
Justice), and Estela M. Perlas-Bernabe joined in the dissents.
28
Id. at 254.
48
J. Villarama, Jr., Concurring and Dissenting Opinion in Colinares v. People,678 Phil.
29
Id. 482, 512 (2011) [Per J. Abad, En Banc].
30 49
Id. See People v. Ladjaalam, 395 Phil. 1, 35 (2000) [Per J. Panganiban, Third Division],
citing People v. Atop, 349 Phil. 825, 839 (1998) [Per J. Panganiban, En Banc] and People
31
Id. at 254-255, citing Baclayon v. Hon. Mutia, etc., el al, 214 Phil. 126, 131 (1984) [Per J. v. Deleverio, 352 Phil. 382, 404 (1998) [Per J. Vitug, En Bane].
Teehankee, First Division], Amandy v. People, 244 Phil. 457, 465 (1988) [Per J. Gutierrez,
50
Jr., Third Division], 34 Words and Phrases 111, Bala v. Judge Martinez, 260 Phil. 488, See Llamado v. Court of Appeals, 256 Phil. 328, 339 (1989) [Per J. Feliciano, Third
498^99 (1990) [Per J. Sarmiento, Second Division], and Llamado v. Court of Appeals, 256 Division].
Phil. 328, 334-337 (1989) [Per J. Feliciano, Third Division].
51
Sable v. People, et al., 602 Phil. 989, 997 (2009) [Per J. Chico-Nazario, Third Division].
32
Id. at 258.
52
52602 Phil. 989 (2009) [Per J. Chico-Nazario, Third Division].
33
Id. at 262.
53
Id. at 997, citing Francisco v. Court of Appeals, 313 Phil. 241, 250 (1995) [Per J.
34
J. Mendoza, Dissenting Opinion in Francisco v. Court of Appeals, 313 Phil. 241, 267 Bellosillo, En Banc] and People v. Judge Evangelista, 324 Phil. 80, 85-86 (1996) [Per J.
(1995) [Per J. Bellosillo, En Banc]. Mendoza, Second Division].
35 54
Id. at 268-272. J. Villarama, Jr., Concurring and Dissenting Opinion in Colinares v. People, 678 Phil.
482, 511-512 (2011) [Per J. Abad, En Banc],
36
Id. at 275-276.
55
J. Peralta, Dissenting and Concurring Opinion in Colinares v. People, 678 Phil. 482, 506
37
Id. at 276. (2011) [Per J. Abad, En Banc].
56
Id. at 507. ACCUSED. - We are in full accord with such assessment, and further reiterate the
rule that alibi, being the weakest of all defenses as it is easy to fabricate and difficult
57
Id. at 508. to disprove, cannot prevail over and is worthless in the face of the positive
identification of the accused. But most telling in this case is that Laurentes alibi does
58
Id. at 509. not meet the requirements of time and place. It is not enough to prove that the
accused was somewhere else when the crime was committed, but he must also
59
Ponencia, p. 12. demonstrate by clear and convincing evidence that it was physically impossible for
him to have been at the scene of the crime at the time the same was committed. On
60
669 Phil. 512 (2011) [Per J. Carpio, Second Division]. cross-examination, Laurente admitted that it would take about half an hour to
traverse the distance from his house to the scene of the crime. Such distance is so
61
Id. at 523, citing Olivarez v. Court of Appeals, 503 Phil. 421, 431 (2005) [Per J. Ynares- near as not to preclude his having been at the scene of the crime when it was
Santiago, First Division]. committed. We are, therefore, left with no option but to rule that the prosecution has
discharged its burden to prove the commission of homicide by Laurente and to reject
62
Id., citing Olivarez v. Court of Appeals, 503 Phil. 421, 431-432 (2005) [Per J. Ynares- his defense of alibi.
Santiago, First Division], citing in turn Implementing Rules and Regulations of Rep. Act No.
7610 (1992), art. XIII, sec. 32. 4. ID.; ROBBERY WITH HOMICIDE; IN ORDER TO SUSTAIN A CONVICTION OF
ROBBERY WITH HOMICIDE, IT IS IMPERATIVE THAT THE ROBBERY ITSELF
63
Ponencia, p. 2. BE PROVEN AS CONCLUSIVELY AS ANY OTHER ESSENTIAL ELEMENT OF A
CRIME. - A conviction for robbery simply cannot be had in the light of the total
64
Id. absence of evidence regarding the taxicab drivers earnings and the sweeping
statement that the personal belongings of the dead man x x x [were] intact.
63
Id. at 2-3. Moreover, the prosecution did not even bother to introduce evidence as to what time
the victim in this case started plying his route, which may have led to a reasonable
66
542 Phil. 496 (2007) [Per J. Corona, First Division]. inference that he had earned some money by the time the crime was committed. In
sum, there is no conclusive evidence proving the physical act
67
Id. at 506, citing People v. Bon, 444 Phil. 571, 583-584 (2003) [Per J. Ynares-Santiago, of asportation by Laurente and his co-accused. It is settled that in order to sustain a
En Banc]. conviction for the crime of robbery with homicide, it is imperative that the robbery
itself be proven as conclusively as any other essential element of a crime. In the
68
Garingarao v. People, 669 Phil. 512, 524 (2011) [Per J. Carpio, Second Division], absence of such proof, the killing of the victim would only be simple homicide or
citing Olivarez v. Court of Appeals, 503 Phil. 421, 432 (2005) [Per J. Ynares-Santiago, First murder, depending on the absence or presence of qualifying circumstances.
Division] and People v. Abello, 601 Phil. 373, 393 (2009) [Per J. Brion, Second Division]. APPEARANCES OF COUNSEL

The Solicitor General for plaintiff-appellee.

SYLLABUS Public Attorneys Office for accused-appellant.
1. REMEDIAL LAW; EVIDENCE; TRIAL COURTS ASSESSMENT OF THE
CREDIBILITY OF WITNESSES; RULE; CASE AT BAR. - This assessment of the [Syllabus]
credibility of eyewitness Myra Guinto deserves the highest respect of this Court,
considering that the trial court had the direct opportunity to observe her deportment EN BANC
and manner of testifying and availed of the various aids to determine whether she
was telling the truth or concocting lies. This is a settled rule in this jurisdiction and the
exceptions thereto, viz., some fact or circumstance of weight and influence has been
overlooked or the significance of which has been misinterpreted, which if considered
might affect the result of the case, have not been shown to exist in this case. [G.R. No. 116734. March 29, 1996]

2. ID.; ID.; ABSENCE OF IMPROPER MOTIVE ON THE PART OF THE WITNESS TO

FALSELY TESTIFY AGAINST THE ACCUSED ENTITLES HIS TESTIMONY TO
FULL FAITH AND CREDIT. - Equally settled is the rule that where there is no
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LARRY LAURENTE y BEJASA,
evidence, and nothing to indicate that the principal witnesses for the prosecution -
MELVIN DAGUDOG, and RICHARD DISIPULO, accused.
like Myra in this case - were actuated by improper motive, the presumption is that
they were not so actuated and their testimony is entitled to full faith and credit. LARRY LAURENTE y BEJASA, accused-appellant.
3. CRIMINAL LAW; DEFENSE OF ALIBI; CANNOT PREVAIL OVER AND IS
WORTHLESS IN THE FACE OF POSITIVE IDENTIFICATION OF THE DECISION
DAVIDE, JR., J.:
This is a case for our automatic review[1] in view of the death penalty imposed upon
accused-appellant Larry Laurente (hereinafter Laurente).
In a decision[2] promulgated on 23 August 1994 in Criminal Case No. 104785, the
Regional Trial Court (RTC) of Pasig, Branch 156, found Laurente guilty beyond reasonable
doubt of the crime of Highway Robbery with Homicide, defined and penalized
under P.D. No. 532,[3] and sentenced him to suffer the penalty of death; to indemnify the
heirs of the victim in the amount of P50,000.00, and to pay them P27,300.00 as funeral
expenses and P100,000.00 as moral and exemplary damages; and to pay the costs.
We declare at the outset that even granting ex gratia that the established facts prove
beyond reasonable doubt that Laurente and his two co-accused indeed committed the acts
charged in the information,[4] Laurente cannot be validly convicted for highway robbery with
homicide under P.D. No. 532. The object of the decree is to deter and punish lawless
elements who commit acts of depredation upon persons and properties of innocent and
defenseless inhabitants who travel from one place to another - which acts constitute either
piracy or highway robbery/brigandage - thereby disturbing the peace, order, and tranquility
of the nation and stunting the economic and social progress of the people.[5] It is directed
against acts of robbery perpetrated by outlaws indiscriminately against any person on
Philippine highways, as defined therein, and not those committed against a predetermined
or particular victim. Accordingly, a robbery committed on a Philippine highway by persons
who are not members of the prescribed lawless elements or directed only against a
specific, intended, or preconceived victim, is not a violation of P.D. No. 532. This Court, per
Mr. Justice Florenz D. Regalado, so held in People vs. Puno[6] and a reiteration of the
discussion therein is in order. Thus:
Contrary to the postulation of the Solicitor General Presidential Decree No. 532 is not
a modification of Article 267 of the Revised Penal Code on kidnapping and serious illegal
detention, but of Articles 306 and 307 on brigandage. This is evident from the fact that the
relevant portion thereof which treats of highway robbery invariably uses this term in the
alternative and synonymously with brigandage, that is, as highway robbery/brigandage.
This is but in line with our previous ruling, and which still holds sway in criminal law, that
highway robbers (ladrones) and brigands are synonymous.
Harking back to the origin of our law on brigandage (bandolerismo) in order to put our
discussion thereon in the proper context and perspective, we find that a band of brigands,
also known as highwaymen or freebooters, is more than a gang of ordinary
robbers. Jurisprudence on the matter reveals that during the early part of the American
occupation of our country, roving bands were organized for robbery and pillage and since
the then existing law against robbery was inadequate to cope with such moving bands of
outlaws, the Brigandage Law was passed.
The following salient distinctions between brigandage and robbery are succinctly
explained in a treatise on the subject and are of continuing validity:
The main object of the Brigandage Law is to prevent the formation of bands of
robbers. The heart of the offense consists in the formation of a band by more than three
armed persons for the purpose indicated in Art. 306. Such formation is sufficient to
constitute a violation of Art. 306. It would not be necessary to show, in a prosecution under
it, that a member or members of the band actually committed robbery or kidnapping or any
other purpose attainable by violent means. The crime is proven when the organization and
purpose of the band are shown to be such as are contemplated by Art. 306. On the other
hand, if robbery is committed by a band, whose members were not primarily organized for
the purpose of committing robbery or kidnapping, etc., the crime would not be brigandage,
but only robbery. Simply because robbery was committed by a band of more than three
armed persons, it would not follow that it was committed by a band of brigands. In the
Spanish text of art. 306, it is required that the band sala a los campos para dedicarse a
robar.
In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the
purpose is only a particular robbery, the crime is only robbery, or robbery in band if there
are at least four armed participants. The martial law legislator, in creating and promulgating
Presidential Decree No. 532 for the objectives announced therein, could not have been
unaware of that distinction and is presumed to have adopted the same, there being no
indication to the contrary. This conclusion is buttressed by the rule on contemporaneous
construction, since it is one drawn from the time when and the circumstances under which
the decree to be construed originated. Contemporaneous exposition or construction is the
best and strongest in the law.
Further, that Presidential Decree No. 532 punishes as highway robbery or
brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person
or persons on Philippine highways as defined therein, and not acts of robbery committed
against only a predetermined or particular victim, is evident from the preambular clauses
thereof, to wit:
WHEREAS, reports from law enforcement agencies reveal that lawless elements are still
committing acts of depredation upon the persons and properties of innocent and
defenseless inhabitants who travel from one place to another, thereby disturbing the
peace, order and tranquility of the nation and stunting the economic and social progress of
the people;
WHEREAS, such acts and depredations constitute x x x highway robbery/brigandage
which are among the highest forms of lawlessness condemned by the penal statutes of all
countries;
WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating
such acts and depredations by imposing [a] heavy penalty on the offenders, with the end in
view of eliminating all obstacles to the economic, social, educational and community
progress of the people; (Italics supplied.)
Indeed, it is hard to conceive of how a single act of robbery against a particular
person chosen by the accused as their specific victim could be considered as committed
on the innocent and defenseless inhabitants who travel from one place to another, and
which single act of depredation could be capable of stunting the economic and social
progress of the people as to be considered among the highest forms of lawlessness
condemned by the penal statutes of all countries, and would accordingly constitute an
obstacle to the economic, social, educational and community progress of the people, such
that said isolated act would constitute the highway robbery or brigandage contemplated
and punished in said decree. This would be an exaggeration bordering on the ridiculous.
True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307
of the Revised Penal Code by increasing the penalties, albeit limiting its applicability to the
offenses stated therein when committed on the highways and without prejudice to the
liability for such acts if committed.Furthermore, the decree does not require that there be at
least four armed persons forming a band of robbers; and the presumption in the Code that
said accused are brigands if they use unlicensed firearms no longer obtains under the
decree. But, and this we broadly underline, the essence of brigandage under the Code as
a crime of depredation wherein the unlawful acts are directed not only against specific,
intended or preconceived victims, but against any and all prospective victims anywhere on
the highway and whosoever they may potentially be, is the same as the concept of
brigandage which is maintained in Presidential Decree No. 532, in the same manner as it
was under its aforementioned precursor in the Code and, for that matter, under the old
Brigandage Law.
Erroneous advertence is nevertheless made by the court below to the fact that the
crime of robbery committed by appellants should be covered by the said amendatory
decree just because it was committed on a highway. Aside from what has already been
stressed regarding the absence of the requisite elements which thereby necessarily puts
the offense charged outside the purview and intendment of that presidential issuance, it
would be absurd to adopt a literal interpretation that any unlawful taking of property
committed on our highways would be covered thereby. It is an elementary rule of statutory
construction that the spirit of intent of the law should not be subordinated to the letter
thereof. Trite as it may appear, we have perforce to stress the elementary caveat that he
who considers merely the letter of an instrument goes but skin deep into its meaning, and
the fundamental rule that criminal justice inclines in favor of the milder form of liability in
case of doubt.
If the mere fact that the offense charged was committed on a highway would be the
determinant for the application of Presidential Decree No. 532, it would not be far-fetched
to expect mischievous, if not absurd, effects on the corpus of our substantive criminal
law. While we eschew resort to a reductio ad absurdum line of reasoning, we apprehend
that the aforestated theory adopted by the trial court falls far short of the desideratum in the
interpretation of laws, that is, to avoid absurdities and conflicts. For, if a motor vehicle,
either stationary or moving on a highway, is forcibly taken at gunpoint by the accused who
happened to take a fancy thereto, would the location of the vehicle at the time of the
unlawful taking necessarily put the offense within the ambit of Presidential Decree No. 532,
thus rendering nugatory the categorical provisions of the Anti-Carnapping Act of 1972?
And, if the scenario is one where the subject matter of the unlawful asportation is large
cattle which are incidentally being herded along and traversing the same highway and are
impulsively set upon by the accused, should we apply Presidential Decree No. 532 and
completely disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974?
We do not entertain any doubt, therefore, that the coincidental fact that the robbery in
the present case was committed inside a car which, in the natural course of things, was
casually operating on a highway, is not within the situation envisaged by Section 2(e) of the
decree in its definition of terms. Besides, that particular provision precisely define[s]
highway robbery/brigandage and, as we have amply demonstrated, the single act of
robbery conceived and committed by appellants in this case does not constitute highway
robbery or brigandage. (citations omitted)
In the instant case, there is not a shred of evidence that Laurente and his co-
accused, or their acts, fall within the purview of P.D. No. 532, as interpreted above. Thus,
to repeat, Laurente cannot be validly convicted for highway robbery with homicide
under P.D. No 532.
Assuming further, however, that Laurente and his co-accused may be convicted
under P.D. No. 532, the death penalty cannot be legally imposed on Laurente. While it is
true that Section 3 of the said decree prescribes the penalty of death for highway robbery
with homicide, the imposition of capital punishment was suspended[7] by Section 19(1),
Article III of the 1987 Constitution.[8]
The reimposition of the death penalty by R.A. No. 7659[9] did not ipso jure lift the
suspension as far as P.D. No. 532 is concerned. An examination of the former reveals that
while it specifically imposed the death penalty or restored it for certain crimes,[10] it failed to
do so for the latter - in fact, R.A. No. 7659 does not mention P.D. No. 532 at all. Clearly, by
failing to squarely deal with P.D. No. 532, Congress is deemed not to have considered
highway robbery with homicide a heinous crime; or if it did, it found no compelling reason
to reimpose the death penalty therefor.
Nevertheless, the amended information hereinafter quoted[11] indubitably shows, that
except for the emphasis of the place where the robbery was committed, i.e., a highway, the
charge is actually for robbery with homicide as defined and penalized under Article 294(1)
of the Revised Penal Code. This provision now reads, as amended by Section 9 of R.A.
No. 7659:
ART. 294. Robbery with violence against or intimidation of persons. - Penalties. - Any
person guilty of robbery with the use of violence against or intimidation of any person shall
suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion
of the robbery, the crime of homicide shall have been committed, or when
the robbery shall have been accompanied by rape or intentional
mutilation or arson x x x.
Simply, the information remains a valid information for robbery with homicide under
the above provision. The investigating prosecutors characterization that it was for highway
robbery with homicide is of no moment. On the matter of an accuseds right to be informed
of the nature and cause of the accusation,[12] it is elementary that what determines the
offense charged is not the characterization made by the prosecutor who prepared the
information, but the allegations in the indictment.[13]
Accordingly, on the assumption that the prosecution established beyond reasonable
doubt all the elements of robbery and of homicide committed on the occasion thereof,
Laurente can nevertheless be meted the penalty of death under Article 294(1) of the
Revised Penal Code, as amended by R.A. No. 7659, since the crime was committed on 14
February 1994, or one month and thirteen days after the effectivity of R.A. No. 7659. But
whether the prosecution in fact discharged its burden is an entirely different matter which
goes into the merits of this appeal.
We shall then turn our attention to the appeal proper.
In an information[14] dated 17 February 1994 and filed with the trial court on 21
February 1994, Laurente was charged with the crime of Highway Robbery with
Homicide. The information was later amended to include his co-accused, Melvin Dagudog
and Richard Disipulo. The indictment in the amended information read as follows:
That on or about the 14th day of February, 1994 in the Municipality of Pasig, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together with Melvin Dagudog and Richard Disipulo, who are
still at large, and all of them mutually helping and aiding one another, with intent of [sic]
gain and by means of force, violence and intimidation, did then and there willfully,
unlawfully and feloniously take, rob and divest from Herminiano G. Artana of his earnings
in and [sic] undetermined amount along F. Concepcion St., Bgy. San Joaquin, Pasig, Metro
Manila, which is a Philippine Highway; that on the occasion of the said robbery and for the
purpose of enabling them to take, divest and carry away the said money, in pursuance of
their conspiracy and for the purpose of insuring success of their criminal act, said accused
did then and there willfully, unlawfully and feloniously strangle said victim with a leather belt
and hit him with a blunt instrument, causing him to sustain physical injuries which directly
caused his death.
CONTRARY TO LAW.[15]
Laurente was taken into custody on 15 February 1994,[16] but his two co-accused
have remained at large. The case then proceeded as against Laurente only.
Upon arraignment, with the assistance of counsel de oficio, Laurente entered a plea
of not guilty.[17] At trial on the merits, the prosecution presented four witnesses, namely: (1)
SPO1 Crispin Pio, the investigating/arresting officer; (2) eyewitness Myra Guinto; (3)
Felicitas Matematico, the victims daughter; and (4) Dr. Emmanuel Araas, the medico-legal
officer of the Philippine National Police (PNP) Crime Laboratory Services, who performed
the autopsy on the victim. The prosecution attempted to present the other eyewitness, Noel
Guinto (Myras brother-in-law), but despite the issuance of a warrant for his arrest and the
trial courts grant of one last chance to present him, the prosecution was unable to do so.[18]
SPO1 Crispin Pio testified that on 14 February 1994, while on duty as a homicide
investigator at the Pasig Police Station, he received a case assignment relative to one
Herminio Artana. He proceeded to the place of the incident, which was just a few meters
away from the exit gate of the Capitol Compound in Pasig. Upon arrival, he saw a parked
taxicab and looked inside it. He saw a dead man, who, he supposed, was the taxicab
driver.Pio recalled that the taxicab was an Adet taxi, but he forgot its plate number.[19]
At such time, Pio asked the Guinto siblings-in-law and other persons present about
the incident, but gained no meaningful information from them.He conducted a cursory
investigation and saw that the body sustained strangulation marked [sic] and wounds on
the face and head, thus he sent the body to the PNP Crime Laboratory for examination. He
then conducted a crime scene search inside the taxicab and within the vicinity, which
yielded a colored brown wallet containing an SSS [Social Security System] ID of x x x Larry
Laurente and a leather belt supposedly used in strangling the dead man.[20]
Pio took the articles, went to the police station to make an incident report, and
requested the SSS to secure the complete record of Laurente. From the SSS records, the
police authorities learned that Laurente lived somewhere in Kalawaan Sur, Pasig;
accordingly, a follow-up team was formed to arrest him.[21]
Pio further testified that on 15 February 1994, the follow-up team arrested and
brought Laurente to the police station for investigation, and that during the investigation,
after having been apprised of his constitutional rights, Laurente:
[V]erbally admitted that he together with his friend[s] Richard and Melvin boarded the
taxicab and they grabbed the taxicab driver and after which they strangulated [sic] the
driver with the use of [the] belt while Melvin hit the taxi driver with the used [sic] of a blunt
instrument at the head and face.[22]
Thereafter, Laurente was put under [sic] police line-up wherein the 2 witnesses
positively identified him as one of the 3 persons they saw coming from the taxicab. Pio was
present during the conduct of the police line-up and, under his and his
superiors[23] supervision, he had the line-up photographed (Exhibits D and D-1).[24]
Pio next took the statements of the witnesses (Exhibits F and G)[25] and the
complainant (Exhibit E),[26] proceeded to make his report (Exhibit I),[27]executed an affidavit
(Exhibit H)[28] attesting to the conduct of the investigation and arrest, and secured the death
certificate of the victim from the PNP Crime Laboratory (Exhibit J).[29] To close his
testimony on direct examination, Pio identified Laurente and further disclosed their efforts
to locate the other suspects.[30]
On cross-examination, Pio clarified certain details regarding the findings of the
investigation, e.g., the locus criminis was well lit as a lamp post was nearby.[31] However,
Pio admitted that although he informed Laurente of his constitutional rights while he was
investigated at the police station, Laurente was not represented by counsel during such
investigation; he was merely accompanied by a sister and some cousins. Nevertheless,
despite the absence of counsel, Laurente verbally admitted his complicity in the crime,
although the admission was not reduced in writing.[32]
Myra Guinto testified that on 14 February 1994, at about 9:15 p.m., she was selling
cigarettes at Sitio Square, Shaw Boulevard, Pasig, around a meter away from the
Provincial Capitol.[33] At such time, she saw people scrambling inside a yellow taxicab
which was at the stop position on the other side of the Street. Three men then left the
taxicab, ran towards her, and at the time these men passed in front of her, they were about
2 arms length[s] away. These men then boarded a jeepney headed towards Pasig. A fourth
man approached the taxicab, saw the taxicab driver inside already dead and called the
police.[34]
She was questioned by the policemen upon their arrival, and at a later date, reduced
her statements into writing (Exhibit F). After she identified Exhibit F, Guinto then identified
Larry Laurente as one of the three men who left the taxicab and passed in front of her.[35]
On cross-examination, Guinto declared that the taxi was rather of old vintage and
that it did not have tinted windows, in fact, one could see the persons inside the taxi. She
likewise declared that the place where she first saw the taxicab had a big white bulb and
was approximately fifteen meters away from where she was selling cigarettes.[36]
Felicitas Matematico testified that the victim was her father and presented the
following as evidence of funeral expenses: (a) several pieces of paper with the tagalog
caption nagastos noong lamay[37] (Exhibit K);[38] (b) a receipt dated 22 February 1994 for
P800.00, for the construction of a niche cover (Exhibit L);[39] and (c) a receipt dated 21
February 1994 from Sta. Marta Funeral Homes for P 10,000.00 (Exhibit N);[40] for a total of
P27,300.00.To close her testimony on direct examination, she stated that she was still sad
about the death of her father; and when asked to quantify her sadness, she responded that
her mother was in a better position to do so.[41]
Dr. Emmanuel Araas testified on the autopsy he conducted on the cadaver of the
victim and the medico-legal report (Exhibit O) he made on 15 February 1994.[42] He
reiterated his finding that the cause of death of the victim was traumatic injuries of head, Laurente forthwith filed a Notice of Appeal. The trial court noted therein that the
and that he suffered the following injuries: (1) Hematoma, right peri-orbital region, review by this Court was automatic.[54]
measuring 5 by 3 cm., 4 cm. on the anterior midline; and (2) Contusion, neck, measuring
15 by 1.8 cm., crossing the anterior midline, 2 cm. to the right and 13 cm. to the left, and In his Brief, Laurente assigns the following errors committed by the trial court, but
that [t]here are subdural and subarachnoidal hemorrhages. He opined that the injuries being interrelated, discusses them jointly:
could have been caused by a hard blunt instrument, such as a belt, a piece of wood, or a I.
head (buckle) of a belt.[43]

On his part, accused Larry Laurente interposed the defense of alibi. On the witness THE TRIAL COURT ERRED IN CONCLUDING THAT ACCUSED-APPELLANT LARRY
stand, he related that on 14 February 1994, at around 3:00 to 3:30 p.m., he was in his LAURENTE WAS POSITIVELY IDENTIFIED BY THE PROSECUTION WITNESS.
house at Consorcia Street, San Joaquin, Pasig, together with his friends Melvin Dagudog
and Richard Disipulo. Supposedly, they began a drinking session at around 3:30
II.
p.m. which lasted four hours, during which period they consumed two bottles of
Tanduay 5 years. After that, he did not leave his house anymore,[44] as he got so drunk,
lost consciousness, and did not wake up until 4:00 a.m. the next day. It was only then that THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF HIGHWAY
he found out his two friends had left his house.[45] ROBBERY WITH HOMICIDE DESPITE THE FACT THAT THE ELEMENTS OF
COMMITTING SUCH CRIME WERE NOT SUBSTANTIALLY PROVEN BY THE
In the morning of 15 February 1994, he had to look for his wallet as it got lost in [his] PROSECUTION.[55]
wooden bed (papag) where [he slept]. That wallet contained an I.D., SSS number and
P250.00. He then presumed that Melvin Dagudog and Richard Disipulo had taken his
Laurente anchors his prayer for acquittal on the unreliability of the positive
wallet as they were the only ones in the house during the drinking session. Having failed to
identification made of him by the lone eyewitness who testified at the trial, Myra Guinto. He
obtain any information from his neighbors, Mang Roming and Ate Baby, as to where
initially attempts to discredit this by deducing from Myras testimony in court that she was
Dagudog and Disipulo had gone, he went home to rest; then he took a shower and got
neither able to recognize the three men she allegedly saw coming out of the taxicab, nor
ready to report for work. He had been a shingle molder at Winning Enterprises for the past
see Laurente stab the victim. Thus:
three years, with offices in Taguig, Rizal.[46] He maintained that on 15 February 1994, he
reported for work at 6:00 a.m. and stayed in the office till 8:00 p.m.[47] ATTY. FERNANDEZ:
After returning home from work, four policemen were waiting for him, and in xxx xxx xxx
Laurentes own words, bigla na lang po akong sinugod at hinila.[48] He surmised that they
were policemen even if they were not in uniform because they were holding guns. Although Q: By the way, do you know these men who came out from the taxi and passed
they had no warrant of arrest, the policemen brought him to the Pasig police station where by you?
he was investigated for being a hold-upper; and throughout the investigation, he was not
assisted by counsel.[49] On cross-examination of Laurente, the prosecution obtained an A: No, sir.
admission that it would take him about half an hour to travel from his house to the xxx xxx xxx
Provincial Capitol.[50]
(TSN, May 6, 1994)
On 23 August 1994, the trial court promulgated the challenged decision wherein, as
stated earlier, it found Laurente guilty beyond reasonable doubt of highway robbery with Q: And also did not have any knowledge that there was a stabbing incident that
homicide punishable by death as a single indivisible penalty under Presidential Decree No. happened inside the taxi?
532 entitled Anti-Piracy and Anti-Highway Robbery Law of 1974.[51] It gave full faith and
credit to the eyewitness account of Myra Guinto and rejected the defense of alibi proffered A: None, sir.
by the Laurente as he failed miserably to give any evidence to support this
Q: Now, you said that there were three men who ran passed [sic] infront of you.
claim.[52] Regarding Laurentes presence at the locus criminis, it relied on the positive
Is that correct?
identification made by Myra and Laurentes SSS ID card which was found inside the taxicab
of the victim. Apparently, finding it difficult to impose a death penalty, the trial court stated: A: Yes. sir.

Q: And because of that speed, you were not able to identify any of these
[W]hile the undersigned Presiding Judge does not believe in the imposition of the death
persons?
penalty as a form of punishment, as he has stated about a month ago in Criminal Case No.
104781, entitled People of the Philippines vs. Elpidio Mercado. et al., this same Court, A: No, sir. I was able to recognize one of them because they ran in front of me,
nevertheless, in obedience to the law which is his duty to uphold, the Court hereby sir.
sentences accused LARRY LAURENTE y Bejasa to death x x x.[53]
xxx xxx xxx
 Q: Will you describe to the Honorable Court how fast these man passed by in
front of you?
A: It was quite fast, sir.
xxx xxx xxx
Q: You identified the accused in this case as the one who allegedly killed the
victim in this case. Is that correct?
A: Yes, sir.
Q: Now, did you personally see the accused stabbed [sic] the victim or killed
[sic] the victim?
[56]
A: No, sir. (Ibid, p. 7-8) (Italics Ours)
Hence, Laurente concludes that [t]he identification [by Myra Guinto] of the accused-
appellant in the police line-up as one of those who killed the victim. . . is . . . not entirely
reliable.[57]
Laurente then continues his assault on Myras positive identification by surmising:
[T]hat it was only thru the SSS ID Card of the accused-appellant which was found inside
the taxicab that made the police authorities conclude or suspect [the] accused-appellant. .
.. Thus, in all probability, the identification. . . in the police line-up was because of the SSS
ID Card but not for the reason that she recognized the accused-appellant on the night of
the incident.[58]
As to his SSS ID card in the wallet found inside the taxicab, Laurente submits that the
said card:
[W]ill not suffice as a ground for conviction, for neither was it established that accused-
appellant had left the I.D. while committing the felony. It may well be that who ever took
appellants wallet with the I.D. in it purposely left the same to implicate [the appellant] . . ..It
was established by the defense that the wallet of the accused-appellant which contained
his SSS ID Card was stolen from him by his co-accused [and] this allegation remain[s]
unrebutted by the prosecution.[59]
Finally, Laurente challenges the trial courts rejection of the defense of alibi and
relates this to the allegedly improbable positive identification by Myra Guinto and
ultimately, the constitutional presumption of innocence:
While it may be admitted that the defense of alibi. . . is. . . weak this gains strength when
the evidence of the prosecution is equally weak. As earlier discussed, there is no positive
identification of the [appellant] by. . . Myra Guinto, thus the defense of alibi of the appellant
perforce prevails. As held, the weakness of alibi of the accused could not strengthen the
prosecutions case for settled is [the] rule that the prosecution must rely on the strength of
its evidence and not on the weakness of the defense. (People v. Garcia, 215 SCRA 349)
Further, alibi as a defense assumes commensurate strength . . . where the evidence
presented by the prosecution [is] unreliable and uncertain since it is not relieved of
the onus probandi just because alibi is the defense invoked by the accused
(People v. Jalon, 215 SCRA 680).[60]
At bottom, Laurentes line of reasoning flows as such: First, the positive identification
by Myra Guinto is unreliable as she did not see the three men who came out of the taxicab,
neither did she see Laurente stab the victim. Second, in the light of the improbability
of Myra having adequately seen Laurente at the locus criminis, the positive identification at
the police line-up necessarily cannot be relied upon as well. Third, without the positive
identification of Laurente, only his SSS ID card found inside the taxicab links him to the
crime; however, Laurente satisfactorily proved that his wallet containing his SSS ID card
had been taken. Hence, he concludes, the spurious positive identification, either at the
scene of the crime or at the police line-up, coupled with the weak link provided by his SSS
ID card found inside the taxicab, should not be allowed to overcome the defense of alibi
and the presumption of innocence.
Laurentes attempts to cast doubt upon the positive identification made of him
by Myra must fail.
Laurentes contention that Myra did not see the three men who came out of the
taxicab deserves scant consideration. As the proceedings below clearly established, the
place where Myra saw Laurente was well-lit due to a lamp post nearby and the latter was
only two arms lengths away from her when he passed in front of her. Moreover, she
identified Laurente at the police line-up, which was even photographed, and in open
court. Finally, as observed by the trial court:
Nothing in the demeanor of prosecution witness Myra Guinto would indicate that she
harbors ill-feelings towards accused Larry Laurente that she will falsely testify against him.
Her testimony is thus given much weight by the Court. . .[61]
This assessment of the credibility of eyewitness Myra Guinto deserves the highest
respect of this Court, considering that the trial court had the direct opportunity to observe
her deportment and manner of testifying and availed of the various aids to determine
whether she was telling the truth or concocting lies.[62] This is a settled rule in this
jurisdiction and the exceptions thereto, viz., some fact or circumstance of weight and
influence has been overlooked or the significance of which has been misinterpreted, which
if considered might affect the result of the case,[63] have not been shown to exist in this
case.
Equally settled is the rule that where there is no evidence, and nothing to indicate
that the principal witnesses for the prosecution - like Myra in this case - were actuated by
improper motive, the presumption is that they were not so actuated and their testimony is
entitled to full faith and credit.[64]
Laurentes next contention that Myra did not actually see him stab the victim must
likewise fail. From the circumstances obtaining in this case, it cannot be doubted that
Laurente and his companions acted in conspiracy in committing the crime. They were
together in the taxicab when it stopped and Myra saw them scrambling inside, after which,
they ran off and boarded a jeepney to escape. On the matter of proving the existence of
conspiracy, it is settled that direct proof of the previous agreement to commit a crime is not
necessary. It may be deduced from the mode and manner by which the offense was
perpetrated, or inferred from the acts of the accused themselves when such point to a joint
purpose and design, concerted action and community of interest.[65] There is no doubt in
our minds that the victim was killed by the co-conspirators. That Myra did not actually see
that it was Laurente who stabbed the victim is of no moment. Once conspiracy is
established, the act of one is the act of all.[66]
 Laurentes story on the alleged loss of his SSS ID card and its being found in the
taxicab is simply unbelievable. As to his defense, the trial court assessed Laurentes
testimony in this manner:
Accused Larry Laurente would like the Court to believe that he was someplace else
when the hold-up and killing . . . occurred . . . During his testimony, he first claimed to have
gone to work on February 14, 1994, and then on the same breath, he suddenly changed
his mind and said that he was absent. He would also like to convince the Court that his co-
accused in this case, Richard Disipulo and Melvin Dagudog, came out of the blue, had a
drinking session with him, and just left with nary a word to him.
Evidence to be believed must proceed not only from the mouth of a credible witness
but the same must be credible in itself as when it conforms to the common experience and
observation of mankind. (People vs. Jalon, 215 SCRA 680).
The Court also noted that [the] accused. . . contradicted himself when he said that he
ha[d] been a molder . . in Tagig, Metro Manila for the past three (3) years and yet, he has
only been in Manila from Negros Oriental last October! Such inconsistencies destroy his
credibility and further bolster the Courts findings that his defense of alibi is merely invoked
as a matter of convenience.[67]
We are in full accord with such assessment, and further reiterate the rule that alibi,
being the weakest of all defenses as it is easy to fabricate and difficult to disprove, cannot
prevail over and is worthless in the face of the positive identification of the accused.[68] But
most telling in this case is that Laurentes alibi does not meet the requirements of time and
place. It is not enough to prove that the accused was somewhere else when the crime was
committed, but he must also demonstrate by clear and convincing evidence that it was
physically impossible for him to have been at the scene of the crime at the time the same
was committed.[69] On cross- examination, Laurente admitted that it would take about half
an hour to traverse the distance from his house to the scene of the crime.[70] Such distance
is so near as not to preclude his having been at the scene of the crime when it was
committed. We are, therefore, left with no option but to rule that the prosecution has
discharged its burden to prove the commission of homicide by Laurente and to reject his
defense of alibi.
Proof of the commission of robbery, however, must be examined more closely.
Laurente pleads that the prosecution failed to prove the element of robbery, thus, his
conviction of the crime charged should not be sustained. On this score, Laurente calls this
Courts attention to the fact:
[T]hat not a single [shred of] evidence was introduced by the prosecution to prove robbery
or unlawful taking of property from the victim. Nothing was shown whether the victim was
divested of his money or other personal belongings. It cannot be presumed that the main
purpose of the killing . . . was to rob [the victim]. There must be evidence showing the
unlawful taking of another by means of violence or force upon things to make the accused-
appellant liable under Pres. Dec. No. 532. . ..[71]
An examination of the records of this case reveals that the following constitute the
evidence to prove the robbery aspect of the offense: the statement given by the victims
daughter to the investigating! arresting officer,[72] and the contents of the affidavit executed
by the investigating/arresting officer himself.[73]
The police statement of the victims daughter contained the following exchange:
05. t: Nalaman mo ha naman kung ano ang dahilan at pinatay ang iyong
tatay?
s: Ang tatay ko po ay hinoldap.
06. t: Ano naman ang trabaho nang iyong tatay, para siya holdapin?
s: Siya po ay taxi driver.
xxx xxx xxx
08. t: Nalaman mo ha naman kung magkano ang nakuha O naholdap sa
iyong tatay?
s: Hindi ko po alam kung magkano pero wala na po ang kinita niya sa
pagpapasada ng taxi.
09. t: Papaano naman ninyo nalaman na hinoldap at napatay ang iyong
tatay?
s. Nuong pang gabi ng petsa 14 ng Pebrero 1994, mayroon pong
pumunta sa aming bahay at kami po ay inimpormahan na ang
aking tatay ay hinoldap at napatay habang sakay siya ng kanyang
inilalabas na taxi.[74] (italics supplied)
Clearly, such constituted inadmissible hearsay as any knowledge as to the robbery aspect
of the offense was not derived from her own perception[75]and did not fall within any of the
exceptions to the hearsay rule.[76] However, assuming arguendo that the said statements
were admissible for failure of the defense counsel to raise a timely objection, nevertheless,
such statements carry no probative value.[77]
On the subject of SPO1 Pios affidavit concerning the conduct of the investigation, it
becomes the sole piece of evidence to prove the robbery in the case before us. The
relevant portion is quoted hereunder:
That . . . a crime scene search was conducted by this investigator, during said search, . . .
a leather wallet colored brown was found on the passenger seat at the back . . . further the
personal belongings of the dead man known as the taxi driver was [sic] intact, however, his
daily earnings was [sic] missing, showing that the victim was robbed before being killed. .
..[78] (italics supplied)
This Court holds that the above statements, as the lone measure by which to judge
the commission of robbery, are insufficient to prove the same, i.e., that the victim actually
earned money and that these earnings were unlawfully taken by the accused. The
prosecution, in this regard, failed to discharge the burden of proof and satisfy the quantum
of evidence for the robbery aspect in this case.
A conviction for robbery simply cannot be had in the light of the total absence of
evidence regarding the taxicab drivers earnings and the sweeping statement that the
personal belongings of the dead man . . . [were] intact. Moreover, the prosecution did not
even bother to introduce evidence as to what time the victim in this case started plying his
route, which may have led to a reasonable inference that he had earned some money by
the time the crime was committed. In sum, there is no conclusive evidence proving the
physical act of asportation by Laurente and his co-accused.[79]
 It is settled that in order to sustain a conviction for the crime of robbery with homicide,
it is imperative that the robbery itself be proven as conclusively as any other essential
element of a crime. In the absence of such proof, the killing of the victim would only be
simple homicide or murder, depending on the absence or presence of qualifying
circumstances.[80]
We thus rule that the crime committed by Laurente is homicide under Article 249 of
the Revised Penal Code and penalized therein with reclusion temporal. Since no modifying
circumstances have been established, it shall be imposed in its medium period pursuant to
Article 64(1) of the Revised Penal Code.
In passing, this Court notes with much concern that the law enforcers in this case
failed to respect Laurentes rights against unlawful arrest[81] and during custodial
investigation.[82]
In this case, the follow-up team which arrested Laurente on 15 February 1994 had
only the latters SSS ID card as possible basis to link Laurente to the crime. None of the
members of the team were eyewitnesses to the commission of the crime; they had,
therefore, nothing to support a lawful warrantless arrest under Section 5, Rule 113 of the
Rules of Court. Under this section, a peace officer or a private person may, without
warrant, arrest a person only: (a) when in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense; (b) when an
offense has in fact been committed, and he has personal knowledge of facts indicating that
the person to be arrested has committed it; and (c) when the person to be arrested is a
prisoner who has escaped from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has escaped while being
transferred from confinement to another.
SPO1 Crispin Pio candidly admitted that he investigated Laurente without the benefit
of counsel after Laurente was arrested, although he informed him of his constitutional
rights. As to what these rights were, he never disclosed; moreover, neither did Pio
demonstrate that he exerted the requisite effort to ensure that Laurente understood his
rights.[83] Undoubtedly, the custodial investigation had commenced, as the police
authorities had in fact pinpointed Laurente as the author or one of the authors of the crime
or had focused on him as a suspect thereof. Finally, there is no evidence that Laurente
waived the rights to remain silent and to counsel. Section 12(1), Article III of the 1987
Constitution provides as follows:
SEC. 12 (1). Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the services
of counsel, he must be provided with one. These rights cannot be waived except in writing
and in the presence of counsel.
There was then a total disregard of the duties of an investigator during custodial
investigation, which this Court laid down in Morales vs. Enrile,[84]reiterated in several
cases.[85]
[86]
It cannot be overemphasized that the rights enshrined in the Bill of Rights are the
very mechanisms by which the delicate balance between governmental power and
individual liberties is maintained. Thus, it does not bode well for society when our law
enforcers defy the fundamental law of the land in ignoring these rights designed to ensure
the very equilibrium of our democracy.
It must, however, be pointed out that the conviction of Laurente is not based on his
alleged oral admission during his custodial investigation by SPO1 Crispin Pio.
WHEREFORE, the challenged decision of Branch 156 of the Regional Trial Court of
Pasig in Criminal Case No. 104785 is hereby modified as to the nature of the offense
committed. As modified, accused-appellant LARRY LAURENTE y BEJASA is found guilty
beyond reasonable doubt, as co-principal by direct participation, of the crime of Homicide,
defined and penalized under Article 249 of the Revised Penal Code, and applying the
Indeterminate Sentence Law, said accused-appellant LARRY LAURENTE y BEJASA is
hereby sentenced to suffer an indeterminate penalty ranging from Ten (10) years of prision
mayor medium, as minimum, to Seventeen (17) years and Four (4) months of reclusion
temporal medium, as maximum. In all other respects, the appealed decision is AFFIRMED.
Costs against the accused-appellant.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Francisco, Hermosisima, Jr., and Panganiban, JJ., concur.
Torres, J., on leave.
[1]
Article 47, Revised Penal Code, as amended by Section 22, R.A. No. 7659.
[2]
Original Records (OR), 1 16-128; Rollo, 12-24. Per Judge Martin S. Villarama, Jr.
[3]
Entitled, The Anti-Piracy and Anti-Highway Robbery Law of 1974, which took effect on 8
August 1974 (People vs. Rodriguez, 135 SCRA 485,491 [1985]).
[4]
lnfra note 15.
[5]
See Preamble of P.D. No. 532.
[6]
219 SCRA 85, 96-100 [1993].
[7]
People vs. Muoz, 170 SCRA 107 [1989].
[8]
The said section provides that [e]xcessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither shall the death penalty be
imposed, unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it. Any death penalty already imposed shall be reduced
to reclusion perpetua.
[9]
Entitled, An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for
that purpose the Revised Penal Code, as Amended, other Special Penal Laws,
and for Other Purposes; 90 O.G. No. 3, 311-326, 17 January 1994. The law took
effect on 31 December 1993 (People vs. Simon, 234 SCRA 555,569 [1994]).
[10]
It either re-imposed or imposed the death penalty in the following cases, viz., treason,
qualified piracy, qualified bribery, parricide, murder, infanticide, kidnapping and
serious illegal detention, some instances of robbery with violence against or
intimidation of persons, destructive arson, some classes of rape, plunder
involving an aggregate amount of at least P50 million, some forms of violations of
the Dangerous Drugs Act of 1972, as amended, and carnapping.
[11] [40]
Infra, note 15. Id., 58.
[12] [41]
Section 14(2), Article III, 1987 Constitution. TSN, 6 May 1994, 10-11.
[13] [42]
FLORENZ D. REGALADO, Remedial Law Compendium, Vol. 2, Third Revised Ed. OR 72.
[1984], 599 (citations omitted); JOAQUIN G. BERNAS, S.J., The Constitution of [43]
the Republic of the Philippines - A Commentary, Vol. 1 [1987] 387; ISAGANI A. TSN, 17 May 1994, 5-7.
CRUZ, Constitutional Law [1991] 314. [44]
TSN, 12 July 1994, 3-4.
[14]
OR, 1 ; Rollo, 3-4. [45]
Id., 5.
[15]
OR, 48. [46]
TSN, 12 July 1994, 3.
[16]
TSN, 12 July 1994,7. [47]
Id., 5-7.
[17]
OR, 24-27. [48]
This literally translates to: They suddenly rushed towards me and pulled me.
[18]
OR, 83,90. [49]
TSN, 12 July 1994, 7-8.
[19]
TSN, 26 April 1994,3-4. [50]
Id., 13-14.
[20]
Id., 4-5. [51]
OR, 126; Rollo, 22.
[21]
TSN, 26 April 1994, 5. [52]
Id., 125; Id., 21.
[22]
Id., 5 (should be 6 due to a mistake in pagination which resulted in two pages being [53]
Id., 127-128; Id., 23-24, 61-62.
marked as 5).
[54]
[23] OR, 132.
Chief Senior Inspector Felix Balitao.
[55]
[24] Rollo, 44-45.
OR, 41.
[56]
[25] Rollo, 45-46.
Id. 3-5.
[57]
[26] Id., 46.
Id., 2.
[58]
[27] Id., 46.
Id. 8.
[59]
[28] Id., 47.
Id., 7.
[60]
[29] Rollo, 48.
OR, 10.
[61]
[30] OR, 126; Rollo, 22.
TSN, 26 April 1994,6-9 (should be 7-10).
[62]
[31] People vs. Enciso, 223 SCRA 675 [1993]; People vs. Lagrosa, Jr., 230 SCRA 298
Id., 11 (should be 12). [1994].
[32]
Id., 12-13 (should be 13-14). [63]
People vs. Marcelo, 223 SCRA 24 [1993].
[33]
TSN, 6 May 1994,2-3. [64]
People vs. Simon, 209 SCRA 148 [1992]; People vs. Castor, 216 SCRA 410 [1992];
[34]
Id., 3-4. People vs. Taneo, 218 SCRA 494 [1993]; People vs. Rostata, 218 SCRA 657
[1993]; People vs.Quejada. 223 SCRA 77 [1993].
[35]
TSN, 6 May 1994, 4-5. [65]
People vs. Pama, 216 SCRA 385 [1992]; People vs. Cordova, 224 SCRA 319 [1993];
[36]
Id., 6. People vs. Canillo, 236 SCRA 22 [1994].
[37] [66]
This translates to amount spent for the wake. People vs. Pama, supra note 65; People vs. Rostata, supra note 64;
[38]
People vs. Liquiran, 228 SCRA 62 [1993]; People vs. Canillo, supra note 65.
OR, 59.
[67]
[39]
OR, 124-125; Rollo, 20-21.
Id., 56.
[68]
People vs. Lee, 204 SCRA 900 [1991]; People vs. Casinillo, 213 SCRA 777 [1992]; [G.R. No. 131829. June 23, 2000]
People vs. Florida, 214 SCRA 227 [1992].
[69]
People vs. Penillos, 205 SCRA 546 [1992]; People vs. Buka, 205 SCRA 567 [1992];
People vs. de la Cruz, 207 SCRA 632 [1992]; People vs. Castor, supra note 64.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONNIE AGOMO-O, accused,
[70]
TSN, 12 July 1994, 13-14.
EDDY PANEZA and OSCAR SERVANDO, accused-appellants.
[71]
Rollo, 47-48.
[72] DECISION
Exhibit E; OR, 2.
[73]
Exhibit H; Id., 7. MENDOZA, J.:
[74]
OR, 2.
This is an appeal from a decision [1] of the Regional Trial Court, Branch 23, Iloilo City,
[75]
Section 36, Rule 130, Rules of Court. finding accused-appellants Eddy Paneza and Oscar Servando, together with accused
Ronnie Agomo-o, [2] guilty of highway robbery under P.D. No. 532, and sentencing them to
[76]
Sections 37-47, Id. suffer the penalty of reclusion perpetua and to indemnify the heirs of the victim, Rodito
[77] Lasap, in the amount of P50,000.00.
People vs. Nebreja, 203 SCRA 45, 58 [1991], citing People vs. Valero, 112 SCRA The information [3] against accused-appellants and their co-accused Ronnie Agomo-o
661,675 [1982].
charged -
[78]
OR, 7.
[79] That on or about the 22nd day of September, 1993, along the national highway, in the
People vs. Martinado, 214 SCRA 712, 724 [1992]. Municipality of San Enrique, Province of Iloilo, Philippines, and within the jurisdiction of this
[80]
People vs. Martinado, supra note 79. Honorable Court, the above-named accused, conspiring confederating and mutually
helping one another, armed with a pistolized homemade shotgun and bladed weapons
[81]
Section 2, Article III, 1987 Constitution; Section 7, Rule 113, Rules of Court. announced a hold-up when the passenger jeepney driven by Rodito Lasap reached
[82]
Barangay Mapili, San Enrique, Iloilo, and by means of violence against or intimidation, did
Section 12(1), Article III, 1987 Constitution. then and there willfully, unlawfully and feloniously, with intent to gain, take steal and carry
[83] away cash money, in the amount of FIFTY PESOS (P50.00), Philippine Currency and a
People vs. Basay, 219 SCRA 4O4, 418-419 [1993].
wrist watch with a value of THREE THOUSAND PESOS (P3,000.00) both belonging to
[84] JOSE AMADOR, another amount of ONE HUNDRED THIRTY PESOS (P130.00)
121 SCRA 538 [1983].
belonging to FREDDIE AGRABIO, and the amount of TWO HUNDRED PESOS (P200.00)
[85]
See People vs. Galit, 135 SCRA 465 [1985]; People vs. Lumayok, 139 SCRA 1 [1985]; belonging to the driver, RODITO LASAP, with a total value of THREE THOUSAND THREE
People vs. Albofera, 152 SCRA 123 [1987]; People vs. Marquez, 153 SCRA 700 HUNDRED EIGHTY PESOS (P3,380.00), Philippine Currency, to the damage and
119871; People vs. Penillos, supra note 69; People vs. Bandula, 232 SCRA 566 prejudice of the aforesaid persons and on the occasion of said robbery, the accused, with
[1994]; People vs. Agustin, 240 SCRA 541[1995]:1 People vs. Maqueda, 242 intent to kill shot the driver RODITO LASAP, with the firearms they were provided at that
SCRA 565 [1995]. time which resulted [in] the death of Rodito Lasap and with deliberate intent to kill likewise
[86] stab one FREDDIE AGRABIO with a bladed weapon they were provided thus hitting him
Article III, 1987 Constitution.
on the left elbow, thus commencing the commission of homicide directly by overt acts but
did not perform all the acts of execution which would produce the felony by reason of some
cause or accident other than their own spontaneous desistance.

The prosecution evidence showed that, on September 22, 1993, at around 7:30 in the
evening, a passenger jeepney driven by Rodito Lasap en route to Passi, after coming from
Sitio Gomez, Barangay Abaca, San Enrique, Iloilo, was stopped by three men, among
them was the accused in this case, Ronnie Agomo-o, who, armed with a gun, announced a
hold-up and ordered the driver to turn off the engine. After Lasap obeyed, Ronnie Agomo-o
shot him just the same.[4] That same night, Rodito Lasap died as a result of multiple
SECOND DIVISION gunshot wounds.[5] A passenger, Freddie Agrabio, who was seated beside the driver,
transferred, out of fright, to the rear portion of the jeep. He was then told to lie face down
on the floor of the vehicle. Afterwards, he was asked to hand in his wallet
containing P130.00 to one of the robbers. The accused then ordered the passengers to
alight from the jeepney and keep their hands up. As they were doing so, accused-appellant
Paneza stabbed Agrabio, hitting him on the left elbow. Agrabio ran from the scene.[6]
Another passenger of the jeepney was Jose Amador. He saw the three accused coming
from the sugarcane field at Barangay Mapili. The three stopped the passenger
jeepney. Eddy Paneza took Amadors wallet containing P50.00 as well as his wrist watch,
all the while pointing a pinote at him.He thought it was Oscar Servando who stabbed
Freddie Agrabio. When Agrabio ran, Amador also ran.[7] Amador said that he was seated
behind the driver and was thus able to see the accused as the moon was bright and there
was light coming from the jeepney.[8]
SPO1 Joely Lasap and his companions received a report of the hold-up. Some of them
went to Barangay Mapili to respond to the report of the incident.At around four oclock in the
morning of the following day, SPO1 Lasap and his companions found three empty shells of
a 12-gauge shotgun.[9] SPO1 Lasap is a first cousin of the victim Rodito Lasap.[10]
Dr. Jason Palomado of the Passi District Hospital treated Freddie Agrabio for a wound on
his left elbow. The wound was two centimeters in length and two centimeters in
depth. Agrabio was discharged from the hospital the following morning.[11] Dr. Palomado
issued a medical certificate[12] stating that Agrabio needed treatment for a period of 9 to 30
days.
On September 28, 1993, Jocelyn Agomo-o went to the San Enrique Police Station and
turned over a wrist watch allegedly taken during the hold-up.The watch was eventually
returned to its owner, Jose Amador.[13] The defense of the accused was alibi. Ronnie
Agomo-o claimed that he was at the Provincial Hospital with his mother from September 21
to September 23, 1993 to watch over his sick brother.[14] Accused-appellant Eddy Paneza
said he was in his aunts house in Rizal, Palapala, Iloilo in the morning of September 22,
1993 and that, at around 10 oclock, he accompanied his aunt, Teresa Escultero, to Brgy.
Madarag, San Enrique, arriving there at three oclock in the afternoon. They went there to
talk with the family of the prospective husband of his aunts daughter. Eddy Paneza slept in
the grooms house and proceeded to Barangay Bawatan the following morning.[15]Teresa
Escultero corroborated Eddy Panezas testimony.[16] Lastly, Ma. Elena Servando, sister-in-
law of Oscar Servando, testified that on September 22, 1993, accused-appellant Oscar
Servando accompanied her to Sitio Baclayan, San Enrique to gather corn. They went back
home at around six oclock in the evening. They removed the corn ears from the cob and
finished doing so at 11 oclock that evening. The following morning, they dried the corn until
the afternoon.[17]
The lower court then rendered a decision on February 5, 1997 finding the accused
guilty. The dispositive portion of its decision states:
WHEREFORE, premises considered, judgment is hereby rendered finding accused Ronnie
Agomo-o, Eddy Paneza and Oscar Servando GUILTY beyond reasonable doubt of
violating the provisions of Section 3, Paragraph (b) of Presidential Decree No. 532,
otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974, particularly
the last portion thereof, and sentences them to suffer a penalty of imprisonment
of Reclusion Perpetua, and to pay the heirs of Rodito Lasap civil indemnity in the amount
of P50,000.00.
The accused Ronnie Agomo-o, Eddy Paneza and Oscar Servando who are presently
detained are entitled to be credited in full with the entire period of their preventive
detention.
[18]
SO ORDERED.
It is from this judgment that Paneza and Servando appealed. Ronnie Agomo-o did
not appeal. Accused-appellants contend:
I. THE TRIAL COURT ERRED IN FINDING ALL THE ACCUSED RONNIE
AGOMO-O, EDDY PANEZA and OSCAR SERVANDO GUILTY BEYOND
REASONABLE DOUBT OF VIOLATING THE PROVISIONS OF SECTION
3, PARAGRAPH (b) OF PRESIDENTIAL DECREE NO. 532, OTHERWISE
KNOWN AS THE ANTI-PIRACY AND ANTI-ROBBERY LAW OF 1974, IN
SPITE OF THE FACT THAT THERE WAS NO PROOF OF CONSPIRACY.
II. THE TRIAL COURT FURTHER ERRED IN IMPOSING A PENALTY OF
IMPRISONMENT OF RECLUSION PERPETUA TO ALL THE ACCUSED
AND TO PAY THE HEIRS OF RODITO LASAP CIVIL INDEMNITY IN THE
AMOUNT OF P50,000.00.
III. THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-
APPELLANT OSCAR SERVANDO IN SPITE OF THE ABSENCE OF
PROOF AS TO HIS PARTICIPATION.
We find the appeal to be without merit.
First. Accused-appellants claim that the testimony of Freddie Agrabio was incredible and
highly improbable. They contend that Agrabio could not have been beside the driver when
the latter was shot; otherwise, he, too, would have been injured considering his proximity to
the driver.[19] That Freddie Agrabio could also have been hit is sheer speculation and
conjecture and, therefore, not a valid argument against the veracity of his
testimony. Freddie Agrabio could not have been hit because Rodito Lasap was shot at
close range.[20] The latter was shot on the chest,[21] hence, the scattered pellets only hit that
area. Moreover, Freddie Agrabio was the only one seated in front of the jeepney beside the
driver.[22] Under such circumstances, the passenger could have moved away from the
driver. He may have been seated next to the driver but not close enough to be within the
range of the shotgun.
The trial court correctly relied on the positive identification of the accused made by Freddie
Agrabio and Jose Amador. No reason has been advanced why the testimonies of these
witnesses should not be believed. Hence, the trial courts evaluation of the witnesses
testimonies must be accorded great respect since it had the opportunity to observe and
examine the witnesses conduct and demeanor on the witness stand.[23]
On direct examination, Freddie Agrabio testified as follows:
Q. Mr. Freddie Agrabio, on September 22, 1993, around 7:30 in the evening, more or
less, could you remember where were you?
A. Yes, sir.
Q. Where were you?
A. I was sitting in the front seat of the jeepney.
Q. Why were you there?
A. I was going to town.
Q. Of what town?
A. Passi.
Q. Where did you come from? A. He instructed the driver Rodito Lasap to turn off the engine of the jeep and upon
instructing Rodito he shot Rodito Lasap.
A. From Sitio Gomez.
Q. Was Rodito Lasap hit by Ronie Agomo-o?
Q. What municipality?
A. Yes, sir.
A. Sitio Gomez, Brgy. Abaca, San Enrique, Iloilo.
Q. And what happened further?
Q. While riding on the said jeepney, could you remember if any incident that
happened? A. Then I transferred to the back portion of the jeep at the passengers area.

A. When we arrived at the crossing Ronie Agomo-o appeared bringing with him a Q. After you transferred at the back portion of the passenger jeep, what did the three
firearm. (3) outlaws do, if any?

Q. Could you remember what crossing was that? A. They told us to give our money to them and not to do anything bad.

A. Crossing [Barangay] Mapili. COURT

Q. Of what municipality is Brgy. Mapili? Q. Who ordered the passengers to turn over their money?

A. San Enrique. A. The three (3) of them, Your Honor.

Q. Was Ronie Agomo-o alone? ....

A. There were three of them. Q. After the three (3) accused in this case ordered you and your companions to give
your money, did you follow their order?
Q. Could you remember who were his other companions?
A. Yes, sir, I gave to them my wallet.
A. Eddy Paneza and Servando.
Q. Was your wallet empty at the time you gave them to the holdupper?
Q. By the way, do you know the full [name] of this certain Servando?
A. There was. The money inside was P130.00.
A. I just knew him as Servando.
COURT
Q. Why do you know this Ronie Agomo-o?
Q. To whom did you give your wallet?
A. Because he often drive a jeep and we often pass that place.
A. I really dont know to whom I gave because I was facing down when I gave my
Q. If Ronie Agomo-o is inside the courtroom, could you point out where is he? wallet.
A. Yes, sir. Q. Why did you lie down?
Q. Point to him? A. They told me.
A. He is there. (witness pointing to man seated on the accused bench who when asked Q. What did they tell you?
[identified himself] as Ronie Agomo-o.)
A. They told me not to do anything bad.
Q. How about this Eddy Paneza, could you point out where is he in this Court?
COURT
A. Yes, sir, he is also there. (witness pointing to another seated on the accused bench
who when asked identified himself as Eddy Paneza) Proceed.

Q. How about a certain Servando you mentioned? PROSECUTOR

A. He is there. (witness again pointing to another man situated on the accused bench
and when asked his name identified himself as Oscar Servando)
Q. After you saw this Ronie Agomo-o appeared with a shotgun and declared hold-up,
what happened further?
Q. After you gave your wallet to the holdupper, what happened further, if any?
A. They instructed us to alight from the jeep and kept our hands up.
Q. And what happened further?

A. And then Eddy Paneza stabbed me.

 Q. Were you hit? A. Yes, sir.

A. Yes, sir. Q. And immediately after Ronie Agomo-o appeared from the sugarcane plantation, he
shouted hold-up, is that correct?
COURT
A. Yes, sir.
Q. Where?
Q. And you were still on the front seat of the passenger jeep at the time when he
A. Here, Your Honor. (witness pointing his left elbow) announced there was hold-up, is that correct?
Q. How many times did Eddy Paneza stab you? A. I was beside the driver, at the right.
A. Once. After he stabbed me I ran away. Q. You mean to tell this Honorable Court that immediately he shouted hold-up, he shot
the driver, is that correct?
Q. Were you injured?

A. Yes, Your Honor. (witness showing to the Bench his left elbow with a scar) A. Yes, sir.

Q. And at the time you were near the driver?

....

COURT A. Yes, sir.

Q. You said that Ronie [Agomo-o] used a pistolized homemade shotgun, is that
Proceed.
correct?
PROSECUTOR
A. I cannot identify what kind of firearm because it was dark.
Q. You said that Eddy Paneza, one of the accused in this case stabbed you. Were you
able to have your wound treated? Q. Are you sure of that, Mr. Witness?

A. Yes, sir.
A. Yes, sir.

.... ....

WITNESS
COURT

Q. In what hospital were you treated? A. I am sure that the firearm is a pistolized homemade shotgun.

ATTY. ACEBUQUE
A. At Passi.

.... Q. When Ronie Agomo-o shot the driver Rodito Lasap, how far were you then sitting on
the front seat with the Rodito Lasap?
PROSECUTOR
A. We were side by side.
Q. After Eddy Paneza stabbed you, what happened?
Q. And you saw at the time Ronie Agomo-o shot Rodito Lasap, is that correct?
A. We scampered away and when I turned my back I saw Jose Amador following me.
A. Yes, sir.
Q. Was Jose Amador one of the passengers in the said jeepney?
Q. Where was Ronie Agomo-o at the time when he shot Rodito Lasap?
A. Yes, sir.[24]
A. He was at the left side of the driver.
Freddie Agrabio was steadfast in his testimony despite rigorous cross-examination
by defense counsel. He further testified: COURT

Q. How far was Ronie Agomo-o from Rodito Lasap when he shot the latter?
CROSS EXAMINATION

BY ATTY. ACEBUQUE A. About one arms length.

Q. You saw the accused pointed that shotgun to Rodito Lasap?

Q. You said you were sitting on the front seat when this Ronie Agomo-o appeared from
the sugarcane plantation, is that correct? A. Yes, Your Honor.
Q. When you saw Ronie Agomo-o pointed that firearm to the driver, Rodito Lasap, A. There were three (3) of us.
could you tell this Court what was the distance of the tip of the barrel of the
shotgun to the body of Rodito Lasap? Q. Who were your companions, could you remember?

A. The tip of the barrel is about six (6) to seven (7) inches. A. Joey and Junior.

COURT Q. And this Joey and Junior were still sitting at the front seat when Ronie Agomo-o
shot Rodito Lasap together with you?
From the body of Rodito Lasap. Proceed.
A. No sir, they were not there anymore. They alighted one by one.
ATTY. ACEBUQUE
....
Q. In what particular part of the body of Rodito Lasap did Ronie Agomo-o pointed the
shotgun? Q. When you transferred at the back portion passing through the front seat back, were
Joey and Junior whom you mentioned a while ago still in the front seat?
A. Middle of his breast.
A. They were not there anymore. Only Rodito Lasap was there.
Q. And you were situated beside Rodito Lasap, is that correct?
Q. You testified that your were divested the amount of P130.00. Who divested you of
[Q]. You did not hide when Ronie Agomo-o pointed the shotgun to Rodito Lasap? that amount?

A. I was not able to move. A. I cannot tell which one of them because I was facing down.

Q. You mean to tell this Honorable Court when the firearm was fired, you were still
beside Rodito Lasap, is that correct?
A. When the firearm was fire[d] I was still beside Rodito Lasap.
Q. And despite the burst of the shotgun you were not injured by that particular burst?
Q. So you were not sure who divested you of the amount of P130.00?
A. I am not sure. I could not determine who took the money.
Q. When for the first time were you able to identify the accused, the three (3) accused
here?

A. I was not hit. A. I identified Ronie Agomo-o because I saw him come out from the sugarcane
plantation.
Q. The only injury which you suffered at the time was the stab wound which Eddy
Paneza inflicted upon your person, is that correct? Q. When for the first time you come to know the name of Ronie Agomo-o?

A. Yes, sir. A. For long time already.

COURT COURT

Q. What happened to Rodito Lasap when he was shot by Ronie Agomo-o? Q. How long before the incident on September 22, 1993 did you come to personally
know Ronie Agomo-o?
A. He laid down in the front seat.
A. About five (5) years.
COURT
....
Proceed.
ATTY. ACEBUQUE
ATTY. ACEBUQUE
Q. You said you were confined at the Passi District Hospital for two (2) days, is that
Q. How about you after the shot, what did you do? correct?
A. I transferred to the back portion of the jeep. A. Yes, [s]ir.
Q. You mean to tell this Honorable Court you went down from the front seat then you Q. Immediately upon confinement at the Passi District Hospital, were there policemen
transferred to the back portion of the jeep? who came to the hospital and investigated about the incident?
A. No, sir, I just climbed at the back. A. Joely Lasap came to me.
Q. At the time of the incident, how many persons were sitting at the front seat Q. What is his relation to Rodito Lasap?
excluding the driver?
 A. They are first cousins. Joely Lasap is a policeman of San Enrique. Q Could you likewise remember some of your co-passengers on that particular time?

Q. And this Pat. Lasap investigated you at the said hospital, is that correct? A There others I could remember but the others I could not.

A. Yes, sir. Q And at what particular time was that?

Q. When he investigated you, were you able to identify the three accused immediately? A 7:30 oclock.

A. Yes, sir. Q While the jeep where you were riding was on its way to Passi, could you remember if
there was an unusual incident that happened?
....
A When we were about to cross at the crossing of Brgy. Mapili within the municipality
COURT of San Enrique going to Banate, three persons came out from the camp.
Q. You said awhile ago you came to know Ronie Agomo-o for the last five (5) years. COURT:
How about Eddy Paneza, when for first time have you come to know him
personally? Q What kind of camp was that?

A. I already know them, Your Honor. A The [t]hree persons came out from the sugarcane field.

.... Q And what did they do?

Q. How about Oscar Servando, for how long have you known him? A And they pointed a gun saying This is hold-up.

A. The same year. PROSECUTOR:

Q. You know Oscar Servando for the last five (5) years yet you were not able to know Q How many were holding a gun?
what was his first name?
A One.
A. Because I forgot since my house is far away.
Q Could you remember the person who was holding the gun on that particular time?
....
A Yes, sir I could recall.
ATTY. ACEBUQUE
Q Who was he?
Q. When you first knew the three (3) accused for the last five (5) years, have you ever
met them before the incident of September 22, 1993? A Ronie Agomo-o.

A. Yes, sir. Q If Ronie Agomo-o is inside the Court, could you point out where is he?

Q. How many times have you met the three (3) accused before the incident? A Yes, sir.

A. Many times.[25] INTERPRETER:

Jose Amador corroborated Agrabios testimony as to what transpired in the evening (Witness pointing to a person and when asked of his name answered Ronie Agomo-o).
of September 22, 1993. He testified:
PROSECUTOR:
Q On September 22, 1993 in the evening, where were you? Q How about his companions, could you remember them?
A I was inside the jeep.
A I could identify them when the police pointed them to me but during the incident I
Q Why were you there? dont know them.

A I am intending to go to Passi. Q Could you name the names of the two other companions?

Q Could you remember the name of the driver of that particular jeep where you were A Servando and Paneza.
riding on that particular time?
Q If these other two companions of Ronie Agomo-o are inside the Court, could you
A Yes, sir. The name is Rodito Lasap. point out where are they now?

A Yes, sir.
Q Point to them. Q Then after that?

INTERPRETER: A Servando frisked my waist and then he stabbed Freddie.

(The witness pointed to a man sitting on the right side of the bench, who, when asked
of his name answered Paneza and at the left side answered Servando.)
PROSECUTOR:
Q Now after Ronie Agomo-o and his companions came out of the sugarcane field and
pointed out his gun, what happened further, if any?
A Paneza took away P50.00 and he also got my wrist watch.
Q When Paneza took your wrist watch, was it with your consent or not?
A Why should I not consent because he was holding a pinote.
Q If that wrist watch be shown to you, could you still remember that wrist watch?
A Yes, sir. It is my watch.
Q Showing to you this wrist watch, how is this related to the one you are referring to?
A This is the one. There is a name de luxe.
....
Q Before Paneza took your money and your watch, what did Ronie Agomo-o and his
other companions were doing at that time?
A They told me to get down the jeep.
Q How about the driver, what was he doing at that time?
A He lay down on the chair of the jeep.
Q Do you know why he lay down the jeep?
A Because he lost consciousness for he was shot at the chest.
COURT:
Q Shot by whom?
A Ronie Agomo-o shot the driver.
PROSECUTOR:
Q Which happened first, the shooting of Rodito Lasap by Ronie Agomo-o or the taking
of your watch by Paneza?
A The shooting of the driver was ahead of the taking of my watch.
Q Then upon taking your watch, what did you do?
A They told me to go down from the jeep.
Q Did you go down from the jeep?
Q That Freddie, you refer to the person of Freddie Agrabio?
A Yes, sir because he was following me.
Q Then what happened further, if any?
A No more because Freddie ran away and I also followed Freddie.[26]
As will be noted, the testimonies of Agrabio and Amador did not fit each other in every
detail. For example, while Agrabio identified Eddy Paneza as the person who stabbed
him,[27] Jose Amador said it was Oscar Servando.[28] Freddie Agrabio was also confused
about the type of firearm Ronnie Agomo-o used, whether it was a pistolized homemade
shotgun or something else.[29] Such discrepancies, however, in the testimonies of the
witnesses do not detract from their truthfulness. These apparent inconsistencies may be
attributed more from an honest mistake due to fleeting memory than from a deliberate
intent to prevaricate. Instead of detracting from the truthfulness of the testimonies, the
inconsistencies reinforce the witnesses credibility.[30]What is important is that the
testimonies of these witnesses corroborated each other in material points, to wit: (a) that
the passenger jeepney they were riding on was stopped on the crossing to Barangay
Mapili, San Enrique by an armed man in the person of Ronnie Agomo-o, accompanied by
accused-appellants Eddy Paneza and Oscar Servando; (b) that after announcing a hold-
up, Ronnie Agomo-o shot Rodito Lasap, the driver of the passenger jeepney; and, (c) that
the accused then divested the passengers of their money and other valuables.
It is settled that so long as the witnesses testimonies agree on substantial matters,
the inconsequential inconsistencies and contradictions dilute neither the witnesses
credibility nor the verity of their testimonies. As this Court has held:
In sum, the inconsistencies referred to by the defense are inconsequential. The points that
mattered most in the eyewitnesses testimonies were their presence at the locus
criminis, their identification of the accused-appellant as the perpetrator of the crime and
their credible and corroborated narration of accused-appellants manner of shooting
Crisanto Suarez. To reiterate, inconsistencies in the testimonies of witnesses that refer to
insignificant details do not destroy their credibility. Such minor inconsistencies even
manifest truthfulness and candor erasing any suspicion of a rehearsed testimony.[31]
In contrast to the clear and positive identification of Freddie Agrabio and Jose Amador,
accused-appellants gave nothing but alibi and denial. They gave only self-serving
testimonies, corroborated only by the testimonies of their relatives. As we have held, [a]libi
becomes less plausible when it is corroborated by relatives and friends who may then not
be impartial witnesses.[32] Alibi is an inherently weak defense and must be rejected when
the accuseds identity is satisfactorily and categorically established by the eyewitnesses to
the offense,[33] especially when such eyewitnesses have no ill motive to testify falsely.[34] In
the case at bar, the defense failed to show that Freddie Agrabio and Jose Amador were
motivated by ill will.
Furthermore, accused-appellants defense of alibi and denial cannot be believed as they
themselves admitted their proximity to the scene of the crime when the offense
occurred. Eddy Paneza testified that, at the time of the incident, he was in Barangay
Madarag, a town within the municipality of San Enrique[35] where the robbery took
place. On the other hand, Ma. Elena Servando testified that Oscar Servando went with her
to gather corn in Sitio Baclayan which is also in the municipality of San Enrique.[36]

A Yes, sir.
For the defense of alibi to prosper, the following must be established: (a) the presence of must be directed not only against specific, intended or preconceived victims, but against
the accused-appellant in another place at the time of the commission of the offense; and, any and all prospective victims.[51] In this case, the accused, intending to commit robbery,
(b) physical impossibility for him to be at the scene of the crime.[37] These requisites were waited at the Barangay Mapili crossing for any vehicle that would happen to travel along
not fulfilled in this case.Considering that accused-appellants themselves admitted that they that road. The driver Rodito Lasap and his passengers were not predetermined
were in the same municipality as the place where the offense occurred, it cannot be said targets. Rather, they became the accuseds victims because they happened to be traveling
that it was physically impossible for them to have committed the crime. On the contrary, at the time when the accused were there. There was, thus, randomness in the selection of
they were in the immediate vicinity of the area where the robbery took place. Thus, their the victims, or the act of committing robbery indiscriminately, which differentiates this case
defense of alibi cannot prosper. from that of a simple robbery with homicide.
Second. Accused-appellants contend that there can be no finding of conspiracy against
them because the prosecution failed to establish their participation in the killing of Rodito Sec. 3(b) of the law provides:
Lasap.[38]
The penalty of reclusin temporal in its minimum period shall be imposed. If physical injuries
This argument is without merit. Conspiracy exists when two or more persons come to an or other crimes are committed during or on the occasion of the commission of robbery or
agreement concerning the commission of a felony and decide to commit it. It may be
brigandage, the penalty of reclusin temporal in its medium and maximum periods shall be
inferred from the acts of the accused indicating a common purpose, a concert of action, or imposed. If kidnapping for ransom or extortion or murder or homicide, or rape is committed
community of interest.[39] That there was conspiracy in the case at bar is supported by the
as a result or on the occasion thereof, the penalty of death shall be imposed.[52]
evidence on record. Freddie Agrabio testified that after shooting the driver, the accused
ordered the passengers to give their money and valuables.[40] Although Freddie Agrabio Since a homicide occurred during the commission of the highway robbery, the
could not specify who among the three divested him of his wallet because he was lying appropriate penalty to be imposed on accused-appellants would have been
face down on the floor of the jeepney,[41] it is clear that accused-appellants took part in the death. However, the crime was committed on September 22, 1993 when the imposition of
robbery. Accused-appellant Paneza did not only take valuables from the passengers but the death penalty was suspended by the 1987 Constitution. Hence, the penalty next lower
also stabbed Freddie Agrabio, hitting the latter on the left elbow.[42] Jose Amador identified in degree, or reclusion perpetua, was correctly imposed by the trial court on accused-
both accused-appellants Eddy Paneza as the one who took his wrist watch and wallet appellants Paneza and Servando.
while simultaneously pointing a pinote at him,[43] and Servando as the one who frisked his
waist as he was alighting from the jeepney.[44] Clearly, therefore, accused-appellants In accordance with our recent rulings,[53] the trial court correctly awarded P50,000.00
cooperated with one another in order to achieve their purpose of robbing the driver and his as civil indemnity in favor of the heirs of Rodito Lasap.
passengers. [F]or collective responsibility to be established, it is not necessary that
WHEREFORE, the decision of the Regional Trial Court, Branch 23, Iloilo City
conspiracy be proved by direct evidence of a prior agreement to commit a crime. It is
is AFFIRMED.
sufficient that at the time of the commission of the offense, all the accused acted in concert
showing that they had the same purpose or common design or that they were united in its SO ORDERED.
execution.[45]
While only Ronnie Agomo-o shot and killed Rodito Lasap, accused-appellants cannot be Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.
exonerated. When conspiracy is established, all who carried out the plan and who
personally took part in its execution are equally liable.[46] Accused-appellants must both
also be held responsible for the death of Rodito Lasap.
[1]
Per Judge Tito G. Gustilo
Third. Accused-appellants further assert that they cannot be convicted of highway [2]
Also referred to as Ronie Agomo-o in the records.
robbery as the crime was not committed by at least four persons, as required in Article 306 [3]
Records, p. 1.
of the Revised Penal Code. However, highway robbery is now governed by P.D. No. 532, [4]
TSN, pp. 4-7, May 3, 1994.
otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974. This law [5]
Exh. J.
provides: [6]
TSN, pp. 7-10, May 3, 1994.
[7]
TSN, pp. 4-8, Oct. 5, 1994.
[8]
Sec. 2. (e). Highway Robbery/Brigandage. The seizure of any person for ransom, extortion Id., pp. 12-14.
[9]
or other unlawful purposes, or the taking away of the property of another by means of TSN, pp. 12-13, July 18, 1994.
[10]
violence against or intimidation of person or force upon things or other unlawful means, TSN, p. 5, Aug. 10, 1994.
[11]
committed by any person on any Philippine Highway. TSN, pp. 4-5, June 20, 1994.
[12]
Exh. A.
[13]
TSN, p. 7, Sept. 7, 1994; TSN, p. 20, Oct. 5, 1994.
In the case of People v. Puno,[47] it was held that P.D. No. 532 amended Art. 306 of the [14]
TSN, pp. 6-8, Dec. 16, 1994.
Revised Penal Code and that it is no longer required that there be at least four armed [15]
TSN, pp. 3-6, May 15, 1995.
persons forming a band of robbers.[48] The number of offenders is no longer an essential [16]
See TSN, pp. 2-6, March 14, 1995.
element of the crime of highway robbery.[49] Hence, the fact that there were only three [17]
TSN, pp. 3-6, Sept. 6, 1995.
identified perpetrators is of no moment. P.D. No. 532 only requires proof that persons were [18]
RTC Decision, pp. 7-8; Records, pp. 303-304.
organized for the purpose of committing highway robbery indiscriminately.[50] The robbery
[19]
Brief for the Accused-Appellants, p. 10; Rollo, p. 62. WHAT STARTED OUT AS AN ORDINARY LOVERS QUARREL turned out to be a
[20]
TSN, p. 17, May 3, 1994. nightmarish inferno for the residents of Datu Abing Street, Calinan, Davao City. The
[21]
Id., p. 18. unmitigated passion and impulses incessantly burning in the heat of the moment ignited
[22]
Id., p. 20. the series of events that resulted in the conflagration of 18 September 1998 mercilessly
[23]
People v. Sala, G.R. No. 76340-41, July 28, 1999. destroying the houses along its path. The age-old forewarning that he who plays close to
[24]
TSN, pp. 4-12, May 3, 1994. the fire shall ultimately be consumed by its flames fits literally and figuratively into this
[25]
Id., pp. 12-25. tragic tale of lust, love, betrayal and isolation. After the smoke had dissipated and the heat
[26]
TSN, pp. 4-9, Oct. 5, 1994. simmered down, Nestor G. Soriano found himself charged before the RTC of Davao City
[27]
TSN, p. 9, May 3, 1993. with and later convicted of Destructive Arson penalized under Art. 320 of The Revised
[28]
TSN, p. 8, Oct. 5, 1994. Penal Code, as amended by Sec. 10, par. 1, RA 7659, and sentenced to reclusion
[29]
TSN, pp. 13-15, May 3, 1994. perpetua.[1]
[30]
People v. Bautista, G.R. No. 117685, June 21, 1999.
[31]
People v. Bias, G.R. No. 121630, Dec. 8, 1999. The factual backdrop: About midnight of 17 September onto the early dawn of 18
[32]
People v. Araneta, 300 SCRA 80, 95 (1998). September 1998 accused-appellant Nestor G. Soriano was having an argument with his
[33]
People v. Grefaldia, 298 SCRA 337 (1998). live-in partner Honey Rosario Cimagala concerning their son Nestor, Jr., nicknamed Otoy.
[34]
People v. Araneta, supra. Honey worked as Guest Relations Officer (GRO) in a Metro Manila beer house. The
[35]
TSN, p. 5, May 15, 1995. disagreement stemmed from the fact that Honeys brother, Oscar Cimagala, took their child
[36]
TSN, p. 4, Sept. 6, 1995. out without the consent of accused-appellant who wanted both Honey and Otoy instead to
[37]
People v. Sumalde, et al., G.R. No. 121780, March 17, 2000. return with him to Manila. But Honey refused. As their discussion wore on accused-
[38]
Brief for the Accused-Appellants, p. 13; Rollo, p. 65. appellant intimated to Honey his desire to have sex with her, which he vigorously pursued
[39]
People v. Macahia, 307 SCRA 404 (1999). the night before with much success. This time Honey did not relent to the baser instincts of
[40]
TSN, p. 7, May 3, 1994. Nestor; instead, she kicked him as her stern rebuke to his sexual importuning.
[41]
Id., p. 8. Incensed by her negative response, Nestor nastily retorted: [S]he is now arrogant
[42]
Id., p. 9.
[43] and proud of her brother who now supported (sic) her and her children.[2] He added that
TSN, p. 7, Oct. 5, 1994. since he returned from Manila, the house had become unlucky, referring to that belonging
[44]
Id., p. 8.
[45] to her aunt Fe Cimagila then occupied by Honey located at Datu Abing Street, Calinan,
People v. Durado, G.R. No. 121669, Dec. 23, 1999. Davao City.[3]
[46]
People v. Andales, G.R. No. 130637, Aug. 19, 1999.
[47]
219 SCRA 85 (1993). In the heated exchanges, Nestor struck Honey in the forehead. You are hurting me,
[48]
Ibid. she snapped back, just like what you did to me in Manila.[4]
[49]
People v. Mendoza, 254 SCRA 61 (1996).
[50]
People v. Versoza, 294 SCRA 466 (1998). Nestor then moved away as he muttered: It is better that I burn this house,[5] and then
[51]
People v. Cerbito, G.R. No. 126397, Feb. 1, 2000. took a match from the top of a cabinet, lighted a cigarette and set fire to the plastic partition
[52]
Emphasis added. that served as divider of Honeys room.[6]
[53]
People v. Sumalde, supra. See also People v. Cerbito, supra.
With her naked body precariously draped in a towel, Honey instinctively took off her
covering and doused off the flame with it. Then she rushed to her cabinet in the room to
SECOND DIVISION get a T-shirt and put it on. But Nestor did his worst; he went to Honeys room and set on fire
her clothes in the cabinet.

Honey fled to the ground floor; Nestor followed her. As the conflagration was now
engulfing the second story of the house, Honey frantically shouted to her uncle Simplicio
[G.R. No. 142565. July 29, 2003] Cabrera, who was residing next door, Boy is setting the house on fire, referring to Nestor.[7]

On the ground floor Nestor grappled with Honey and choked her as he dragged her
towards the kitchen. She told him that it would be better for him to kill her than to set the
house on fire as it would endanger the neighboring houses. After initially pointing a knife at
PEOPLE OF THE PHILIPPINES, appellee, vs. NESTOR G. SORIANO alias Boy, Honey, Nestor finally laid down his knife and hurriedly went back to the second floor only to
appellant. see the entire area in flames. They had no choice but to leave as the fire spread rapidly to
the neighboring houses. As a result, the house occupied by Honey was totally burned
DECISION together with five (5) neighboring houses[8] owned individually by Fructuosa Jambo, Ruth
Fernandez, Orlando Braa, Simplicio Cabrera and Perla Clerigo.[9]
BELLOSILLO, J.:
 Subsequently, on 21 September 1998 an Information was filed against accused-
appellant Nestor G. Soriano alias Boy for Arson.[10] On 30 October 1998,
the Information was amended to specify the charge as Destructive Arson[11] under Art. 320,
Sec. 10, as amended by RA 7659 and PD 1613. Again on 18 January 1999,[12] upon prior
motion of accused through counsel for reinvestigation, the prosecution filed a
second Amended Information charging the accused with the same crime of arson but
under Art. 320, Sec. 10 as amended by RA 7659 and PD 1744, and adding the phrase
motivated by spite or hatred towards the occupant of the property, as a special aggravating
circumstance, further including the name of Orlando Braa whose house
worth P1,000,000.00 was also burned.
In the trial, Honey Rosario Cimagala, Oscar Cimagala, Fructuosa Jambo, Ruth
Fernandez, Orlando Braa, Simplicio Cabrera and Perla Clerigo, among others, were
presented as witnesses for the prosecution.
Accused-appellant was the lone witness for his defense.
On 3 September 1999, the RTC of Davao City, Branch 17, found Nestor G. Soriano
alias Boy guilty of Destructive Arson as charged pursuant to RA 7659, Sec. 10, par. 1, as
amended, and sentenced him to reclusion perpetua. The court a quo also ordered him to
pay the complainants whose houses were likewise burned together with that of Fe
Cimagala in the following manner: Fructuosa Jambo, Simplicio Cabrera, Perla Clerigo,
Orlando Braa and Oscar Cimagala P1,000,000.00 each as estimated value of their
respective houses, including another amount of P100,000.00 each as moral damages
and P50,000.00 each by way of exemplary damages, and the costs of suit.
Arson is the malicious burning of property. Under Art. 320 of The Revised Penal
Code, as amended, and PD 1613, Arson is classified into two kinds: (1) Destructive
Arson (Art. 320) and (2) other cases of arson (PD 1613). This classification is based on the
kind, character and location of the property burned, regardless of the value of the damage
caused.
Article 320 of The Revised Penal Code, as amended by RA 7659, contemplates the
malicious burning of structures, both public and private, hotels, buildings, edifices, trains,
vessels, aircraft, factories and other military, government or commercial establishments by
any person or group of persons.[13]The classification of this type of crime is known
as Destructive Arson, which is punishable by reclusion perpetua to death. The reason for
the law is self-evident: to effectively discourage and deter the commission of this dastardly
crime, to prevent the destruction of properties and protect the lives of innocent people.
Exposure to a brewing conflagration leaves only destruction and despair in its wake;
hence, the State mandates greater retribution to authors of this heinous crime. The
exceptionally severe punishment imposed for this crime takes into consideration the
extreme danger to human lives exposed by the malicious burning of these structures; the
danger to property resulting from the conflagration; the fact that it is normally difficult to
adopt precautions against its commission, and the difficulty in pinpointing the perpetrators;
and, the greater impact on the social, economic, security and political fabric of the nation.
If as a consequence of the commission of any of the acts penalized under Art. 320,
death should result, the mandatory penalty of death shall be imposed.
On the other hand, PD 1613 which repealed Arts. 321 to 326-B of The Revised Penal
Code remains the governing law for Simple Arson. This decree contemplates the malicious
burning of public and private structures, regardless of size, not included in Art. 320, as
amended by RA 7659, and classified as other cases of arson. These include houses,
dwellings, government buildings, farms, mills, plantations, railways, bus stations, airports,
wharves and other industrial establishments.[14] Although the purpose of the law on Simple
Arson is to prevent the high incidence of fires and other crimes involving destruction,
protect the national economy and preserve the social, economic and political stability of the
nation, PD 1613 tempers the penalty to be meted to offenders. This separate classification
of Simple Arson recognizes the need to lessen the severity of punishment commensurate
to the act or acts committed, depending on the particular facts and circumstances of each
case.
Under Sec. 4 of PD 1613, if special aggravating circumstances are present in the
commission of Simple Arson, the penalty under Sec. 3 shall be imposed in its maximum
period: (a) If committed with intent to gain; (b) If committed for the benefit of another; (c) If
the offender is motivated by spite or hatred towards the owner or occupant of the property
burned; and, (d) If committed by a syndicate, or group of three (3) or more persons. If by
reason, or on the occasion of Simple Arson death results, the penalty of reclusion
perpetua to death shall be imposed.
Although intent may be an ingredient of the crime of Arson, it may be inferred from
the acts of the accused. There is a presumption that one intends the natural consequences
of his act; and when it is shown that one has deliberately set fire to a building, the
prosecution is not bound to produce further evidence of his wrongful intent.[15] If there is an
eyewitness to the crime of Arson, he can give in detail the acts of the accused. When this
is done the only substantial issue is the credibility of the witness.[16] In the crime of Arson,
the prosecution may describe the theatre of the crime and the conditions and
circumstances surrounding it. Evidence of this type is part of the res gestae.[17]
It is well settled in our jurisdiction that the factual findings of the court a quo as well
as the conclusions on the credibility of witnesses are generally not disturbed. We have no
cogent reason to deviate from this rule in the case at bar.
On the basis of the categorical testimony of Honey Rosario Cimagala positively
identifying accused-appellant as the one responsible for the burning of the house of Fe
Cimagala in the early morning of 18 September 1998, the trial court found the accused
Nestor G. Soriano guilty as charged.
The accuseds denial of the crime cannot be an adequate defense against the
charge. In People v. Mahinay[18] we held that mere denial by witnesses particularly when
not corroborated or substantiated by clear and evidencing evidence cannot prevail over the
testimony of credible witnesses who testify on affirmative matters. Denial being in the
nature of negative and self-serving evidence is seldom given weight in law. Positive and
forthright declarations of witnesses are even held to be worthier of credence than a self-
serving denial.
We agree with the court a quo that the quantum of proof required to convict an
accused in a criminal case has been satisfied in the present dispute. Proof beyond
reasonable doubt does not mean such a degree of proof as, excluding the possibility of
error, produces absolute certainty. Only moral certainty is required, or that degree of proof
which produces conviction in an unprejudiced mind.[19]
The legal basis of the trial court for convicting accused-appellant is Art. 320, par. 1,
of The Revised Penal Code, as amended by RA 7659, Sec. 10, par. 1. Under this
provision, a person found guilty of Destructive Arson is punishable by reclusion
perpetua to death where the burning affects one (1) or more buildings or edifices,
consequent to one single act of burning, or as a result of simultaneous burnings, or
committed on several or different occasions.
However, we believe that the applicable provision of law should be Sec. 3, par. 2, of
PD 1613,[20] which imposes a penalty of reclusion temporal to reclusion perpetua for other
cases of arson as the properties burned by accused-appellant are specifically described
as houses, contemplating inhabited houses or dwellings under the aforesaid law. The
descriptions as alleged in the second Amended Information particularly refer to the
structures as houses rather than as buildings or edifices. The applicable law should
therefore be Sec. 3, par. 2, of PD 1613, and not Art. 320, par. 1 of the Penal Code. In case
of ambiguity in construction of penal laws, it is well-settled that such laws shall be
construed strictly against the government, and literally in favor of the accused.
The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there is intentional
burning; and (b) what is intentionally burned is an inhabited house or dwelling. Incidentally,
these elements concur in the case at bar.
The nature of Destructive Arson is distinguished from Simple Arson by the degree of
perversity or viciousness of the criminal offender. The acts committed under Art. 320
of The Revised Penal Code constituting Destructive Arson are characterized
as heinous crimes for being grievous, odious and hateful offenses and which, by
reason of their inherent or manifest wickedness, viciousness, atrocity and
perversity are repugnant and outrageous to the common standards and norms of
decency and morality in a just, civilized and ordered society.[21] On the other hand,
acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree
of perversity and viciousness that the law punishes with a lesser penalty. In other
words, Simple Arson contemplates crimes with less significant social, economic, political
and national security implications than Destructive Arson. However, acts falling
under Simple Arson may nevertheless be converted into Destructive Arson depending on
the qualifying circumstances present.
In the present case, the act committed by accused-appellant neither appears to be
heinous nor represents a greater degree of perversity and viciousness as distinguished
from those acts punishable under Art. 320 of The Revised Penal Code. No qualifying
circumstance was established to convert the offense to Destructive Arson. The special
aggravating circumstance that accused-appellant was motivated by spite or hatred towards
the owner or occupant of the property burned cannot be appreciated in the present case
where it appears that he was acting more on impulse, heat of anger or risen temper rather
than real spite or hatred that impelled him to give vent to his wounded ego.[22] Nothing can
be worse than a spurned lover or a disconsolate father under the prevailing circumstances
that surrounded the burning of the Cimagala house. Thus, accused-appellant must be held
guilty of Simple Arson penalized under Sec. 3, par. 2, of PD 1613 for the act of intentionally
burning an inhabited house or dwelling.
In addition, we find that there exists a mitigating circumstance that should have been
appreciated by the trial court in determining the penalty to be imposed on the accused-
appellant: a circumstance similar and analogous to passion and obfuscation.[23] An impulse
of invidious or resentful feelings contemplates a situation akin to passion and obfuscation.
This circumstance is mitigating since, like passion and obfuscation, the accused who acts
with these feelings suffers a diminution of his intelligence and intent, a reduction in his
mental and rational faculties.
It has been satisfactorily shown by the court a quo that the lovers quarrel between
Nestor Soriano and Honey Rosario Cimagala ignited the chain of events that led to the
conflagration that occurred in the early dawn of 18 September 1998. Passions were
inflamed in the evening of 17 September 1998 due to the impending return of Soriano to
Manila the following day with the prospect of leaving behind in Davao his son Otoy who
bears his namesake Nestor Jr. But reason, unfortunately, did not prevail; emotions took
control of the events that were to unfold. His efforts went to naught; his attempts to win
back his forbidden love were likewise thwarted. Verily, the resentment accused-appellant
felt came from the realization that he may never see his son again once he left Davao; that
his utter frustration in trying to convince Honey Rosario Cimagala to return to Manila with
their son brought with it a reduction of his rational faculties within that moment in time.
Although emanating from lawful sentiments, the actuations of accused-appellant led to his
criminal act of burning the Cimagala home, and other neighboring houses. In other words,
accused-appellant was in a state of extreme emotional stress.
Mr. Justice Adam C. Carson, in his concurring opinion in United States v.
Butardo,[24] gives his view on the graduation of penalties for the crime of Arson under the
Spanish Penal Code. In the old law on which The Revised Penal Code is based, he
comments that the authors clearly had in mind certain considerations in imposing penalties
of exceptional severity in the various cases of arson. The observations of Mr. Justice
Carson in Butardo are thus still relevant in our contemporary interpretation of criminal law:
The authors of the Spanish Penal Code, in imposing penalties of exceptional severity in
certain cases of arson, clearly had in mind:
First. The extreme danger to which human lives may be exposed by the malicious burning
of dwelling houses and the like;
Second. The danger to property resulting from widespread conflagrations;
Third. The fact that it is extremely difficult to adopt precautions against the commission of
the crime, and to discover the perpetrators after its commission.
Formerly, where these elements marked the commission of the crime, the single penalty
prescribed by law was that of death, but this severity was finally relaxed, and while
exceptionally severe penalties are still imposed in such cases, the authors of the Penal
Code appear to have endeavored to graduate these penalties in accordance with the
degree of danger to life and property, resulting from the commission of the crime.
To this end the severest penalties are prescribed for the malicious burning of edifies in
which large numbers of persons are assembled. Less harsh, but still very severe
penalties are imposed on those setting fire to dwelling houses and other buildings
more or less permanently occupied. Less severe penalties on those guilty of burning
unoccupied dwellings, the penalty being more or less severe as the house appeared to be
situated so as to make a widespread conflagration more or less probable. And finally,
sufficient, but not notably harsh penalties are prescribed in cases where the property of
others is set on fire under conditions which do not suggest special danger to human life or
the likelihood of considerable destruction of property.
In a concurring opinion, this time in U.S. v. Burns, Mr. Justice Ignacio Villamor
explains the rationale behind the penalties for Arson:[25]
In the opinion of Groizard, one of the most famous commentators on the Spanish Penal
Code, of which ours is but a copy, it is the potential damage that is considered here in
fixing the grave penalty of cadena temporal to cadena perpetua. The risk which a person
runs who may be found in a place that is burned, whether it be a building, a farm-house, a
hut or shelter, or a vessel in port, is what constitutes the gravity which is the object of this
crime; just as the damaging intent of the agent, manifested by his setting fire to a place
where he knows there is one or more persons, gives an idea of his subjective perversity.
The same author adds: In the classification of the crime attention must be given to the
intention of the author. When fire is used with the intent to kill a determined person who
may be in a shelter, and that object is secured, the crime committed is not that defined
herein, but that of murder, penalized in article 418 (art. 403 of the Penal Code of the
Philippines), with the penalty of cadena temporal in its maximum degree to death
(Groizard, Vol. 8, p. 45).
Accused-appellant is undoubtedly responsible for the fire that occurred in the wee
hours of 18 September 1998 that razed to the ground the Cimagala home and a number of
other houses in the vicinity. Still, we believe that the record shows that the elements
discussed by Mr. Justice Carson in his separate concurring opinion in Butardo are wanting.
We are therefore not adequately convinced that imposing the exceptionally severe penalty
of reclusion perpetua is proper in the case at bar.
First. There appears to be no reckless disregard for human lives indicative of a cold,
calculating, wicked and perverse intention to burn the Cimagala home. The action of
accused-appellant was the result of a lovers tiff between him and Honey over their
son, Otoy, and concerning the future of their unbridled relationship. His spontaneous, albeit
criminal, act was carried out without any intention to exterminate human lives. His purpose
in going to Davao was to convince his lover to move back with him to Manila and bringing
along their son Otoy.
Second. Neither was there any reckless disregard for the rights of the neighboring
property owners. The criminal act of burning the Cimagala home was carried out by
accused-appellant in a diminished emotional state, which mitigates his criminal liability to a
lesser degree of criminality.
Third. The testimony of Honey clearly points to accused-appellant as the perpetrator
of the crime. However, the conduct of accused-appellant after he consummated the crime,
i.e., when he set fire to the clothes of Honey, is material in determining the severity of the
penalty to be imposed. After his impulsive act of setting fire to both the plastic partition of
the room and Honeys clothes, he attempted to mend his ways immediately by attempting
to put out the flames although it was too late. His act of burning Honeys clothes set in
motion a chain of events that spun out of control and led to the blaze that destroyed
houses in its path. However, despite the mayhem caused by accused-appellant, he never
fled the scene of the crime; in fact, he watched helplessly as the flames consumed the
Cimagala home and the neighboring houses. He did not resist the police authorities when
he was invited for questioning at the police station to shed light on the incident.
Thus, applying Mr. Justice Carsons exceptional severity standard as regards the
imposition of penalties for the crime of Arson, the degree of criminality involved in the
accused-appellants act is lessened by the fact that he acted on an impulse that diminished
his reasoning faculties, thus mitigating the punishment to be imposed. The proper penalty
to be imposed should therefore take into consideration the analogous mitigating
circumstance to passion and obfuscation under Art. 13, par. 10, as discussed above, in
relation to Art. 64, par. 2, of The Revised Penal Code.[26]
Under Sec. 3, par. 2, of PD 1613, in relation to Art. 64, par. 2, of The Revised Penal
Code, the imposable penalty for simple arson is reclusion temporal to reclusion
perpetua the range of which is twelve (12) years and one (1) day to reclusion perpetua.
Applying the Indeterminate Sentence Law, the penalty next lower in degree to the
imposable penalty is prision mayor the range of which is six (6) years and one (1) day to
twelve (12) years in any of its periods. Under the circumstances, it is believed that an
indeterminate prison term of six (6) years four (4) months and twenty (20) days of prision
mayor minimum as minimum to fourteen (14) years two (2) months and ten (10) days of
the minimum of reclusion temporal to reclusion perpetua as maximum may be imposed on
the accused.
As to the award of damages, this Court has consistently held that proof is required to
determine the reasonable amount of damages that may be awarded to the victims of
conflagration. As a rule, therefore, actual or compensatory damages must be proved and
not merely alleged. We believe that the records do not adequately reflect any concrete
basis for the award of actual damages to the offended parties. The court a quo granted the
award solely on the bare assertions of the complaining witnesses. Moral damages cannot
be awarded in this case, as there is no evidentiary basis to justify it. However, accused-
appellants civil liability is beyond cavil; what needs to be resolved is the amount of
indemnity he should pay to the owners of the burned houses for the damage caused. In
lieu thereof, this Court may award temperate or moderate damages to the victims of the
conflagration in accordance with Art. 2224 of the Civil Code. Indeed, the records evince
that the victims suffered some pecuniary loss although the amount thereof cannot be
proved with certainty. Consequently, temperate damages in the amount of P250,000.00
which is considered reasonable under the circumstances should be awarded to each of the
complaining witnesses or their heirs as the case may be.
Exemplary or corrective damages should likewise be awarded as a way to correct
future conduct of this nature and preserve the public good. Such damages are designed to
reshape behavior that is socially deleterious in its consequences.[27] Hence, exemplary or
corrective damages in the amount of P50,000.00 for each of the above-mentioned
complaining witnesses or their heirs is fair and just under the premises.
It must be noted that accused-appellant became an unwitting victim of his own extra-
marital indiscretions. His flawed emotional disposition coupled with a lapse in judgment
became his own undoing as he now languishes in jail for choosing the road to perdition.
Although he has no one to blame but himself for his vicissitudes, we believe that the
lessons to be learned from this sad and miserable chapter of his life are more than
adequate from which he can gain insight and wisdom, while he sits patiently in his prison
cell waiting for the day when he can once again breathe the invigorating air of freedom.
WHEREFORE, Decision of the Regional Trial Court of Davao City finding accused-
appellant NESTOR G. SORIANO guilty of Destructive Arson is MODIFIED to Simple
Arson under Sec. 3, par. 2, of PD 1613, and the penalty imposed on him REDUCED to an
indeterminate prison term of six (6) years four (4) months and twenty (20) days of prision
mayor minimum as minimum to fourteen (14) years two (2) months and ten (10) days
of reclusion temporal minimum as maximum. Temperate damages in the amount
of P250,000.00 and exemplary damages of P50,000.00 are AWARDED to each of
complaining witnesses Fructuosa L. Jambo, Simplicio B. Cabrera, Francisco Clerigo,
Orlando Braa and Oscar T. Cimagala. Costs against accused-appellant.
 [14]
SO ORDERED. Sec. 3 of PD 1613 enumerates the Other Cases of Arson which are punishable by the
penalty of reclusion temporal to reclusion perpetua: (a) Any building used as
Quisumbing, Austria-Martinez, Callejo, Sr. and Tinga, JJ., concur. offices of the government or any of its agencies; (b) Any inhabited house or
dwelling; (c) Any industrial establishment, shipyard, oil well or mine shaft,
platform or tunnel; (d) Any plantation, farm, pastureland, growing crop, grain field,
orchard, bamboo grove or forest; (e) Any rice mill, sugar mill, cane mill, or mill
[1] central; and, (f) any railway or bus station, airport, wharf or warehouse.
Decision penned by Presiding Judge Renato A. Fuentes, RTC-Br. 17, Davao City,
promulgated 3 September 1999; Rollo, pp. 47-48. [15]
Curtis, A Treatise on the Law of Arson (1st ed., 1986), Sec. 283 at 303.
[2]
Id. at 23. [16]
Id., Sec. 287 at 307.
[3]
Id. at 22. [17]
Id., Sec. 302 at 323.
[4]
Id. at 23. [18]
G.R. No. 125311, 17 March 1999, 304 SCRA 767.
[5]
Ibid. [19]
Sec. 2, Rule 133, Rules of Court.
[6]
Ibid. [20]
The relevant provision of PD 1613 states:
[7]
Ibid. Sec. 3. Other Cases of Arson. The penalty of Reclusion Temporal to Reclusion Perpetua
[8] shall be imposed if the property burned is any of the following x x x x
Id at 24.
[9]
Id. at 33. 2. Any inhabited house or dwelling x x x x
[21]
[10] See Preamble, RA 7659.
Id. at 8.
[22]
[11]
Id. at 9. See People v. Gutierrez, G.R. No. 100699, 5 July 1996, 258 SCRA 70.
[23]
[12] Art. 13, par. 10, The Revised Penal Code.
Id. at 11.
[24]
[13]
Under Art. 320, as amended, the enumeration of the instances for Destructive Arson is 11 Phil. 60, 62 (1908). See Carson, J., concurring.
exclusive: (a) one (1) or more buildings or edifices, consequent to one single act [25]
41 Phil. 418, 440 (1921). See Villamor, J., concurring.
of burning, or as a result of simultaneous burning, or committed on several or
[26]
different occasions; (b) any building of public or private ownership, devoted to the Art. 64. Rules for the application of penalties which contain three periods. In cases in
public in general or where people usually gather or congregate for a definite which the penalties prescribed by law contain three periods, whether it be a
purpose such as, but not limited to, official governmental function or business, single divisible penalty or composed of three different penalties, each one of
private transaction, commerce, trade workshop, meetings and conferences, or which forms a period in accordance with the provisions of articles 76 and 77, the
merely incidental to a definite purpose, such as but not limited to, hotels, motels, following rules, according to whether there are or are no mitigating or aggravating
transient dwellings, public conveyance or stops or terminals, regardless of circumstances x x x x 2. When only a mitigating circumstance is present in the
whether the offender had knowledge that there are persons in said building or commission of the act, they shall impose the penalty in its minimum period x x x
edifice at the time it is set on fire and regardless also of whether the building is x
actually inhabited or not; (c) any train or locomotive, ship or vessel, airship or [27]
airplane, devoted to transportation or conveyance, or for public use, Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. V
entertainment or leisure; (d) any building, factory, warehouse installation and any (2d Ed., 1992), p. 663, citing cases.
appurtenances thereto, which are devoted to the service of public utilities; (e) any
building the burning of which is for the purpose of concealing or destroying
evidence of another violation of law, or for the purpose of concealing bankruptcy G.R. No. 209464, July 01, 2015 - DANDY L. DUNGO AND GREGORIO A. SIBAL, JR.,
or defrauding creditors or to collect from insurance; (f) when committed by two (2) Petitioners, v. PEOPLE OF THE PHILIPPINES, Respondent. : JULY 2015 -
or more persons, regardless of whether their purpose is merely to burn or destroy
the building or the burning merely constitutes an overt act in the commission of PHILIPPINE SUPREME COURT JURISPRUDENCE - CHANROBLES VIRTUAL LAW
another violation of law; (g) any arsenal, shipyard, storehouse or military powder LIBRARY
or fireworks factory, ordinance, storehouse, archives or general museum of the
Government; (h) in an inhabited place, any storehouse or factory of inflammable
G.R. No. 209464, July 01, 2015
or explosive material.
The fraternal contract should not be signed in blood, celebrated with pain, marred by
injuries, and perpetrated through suffering. That is the essence of Republic Act (R.A.) No.
8049 or the Anti-Hazing Law of 1995.
This is a petition for review on certiorari seeking to reverse and set aside the April 26, 2013
Decision1 and the October 8, 2013 Resolution2 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 05046, which affirmed the February 23, 2011 Decision3 of the Regional Trial
Court, Branch 36, Calamba City (RTC). The RTC found petitioners Dandy L. Dungo
(Dungo) and Gregorio A. Sibal, Jr. (Sibal), guilty beyond reasonable doubt of the crime of
violation of Section 4 of R.A. No. 8049, and sentenced them to suffer the penalty
of reclusion perpetua.
The Facts
On February 1, 2006, the Office of the City Prosecutor of Calamba, Laguna, filed the
Information4 against the petitioners before the RTC, the accusatory portion of which
reads:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy.
Pansol, Calamba City, Province of Laguna and within the jurisdiction of the Honorable
Court, the above-named accused, during an initiation rite and being then members of
Alpha Phi Omega fraternity and present thereat, in conspiracy with more or less twenty
other members and officers, whose identity is not yet known, did then and there willfully,
unlawfully and feloniously assault and use personal violence upon one MARLON
VILLANUEVA y MEJILLA, a neophyte thereof and as condition for his admission to the
fraternity, thereby subjecting him to physical harm, resulting to his death, to the damage
and prejudice of the heirs of the victim.
CONTRARY TO LAW.
On February 7, 2006, upon motion, the RTC admitted the Amended Information5which
reads:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy.
Pansol, Calamba City, Province of Laguna and within the jurisdiction of the Honorable
Court, the above-name accused, during a plannedinitiation rite and being then officers and
members of Alpha Phi Omega fraternity and present thereat, in conspiracy with more or
less twenty other members and officers, whose identity is not yet known, did then and
there willfully, unlawfully and feloniously assault and use personal violence upon one
MARLON VILLANUEVA y MEJILLA, a neophyte thereof and as condition for his admission
to the fraternity, thereby subjecting him to physical harm, resulting to his death, to the
damage and prejudice of the heirs of the victim.
CONTRARY TO LAW.
On February 7, 2006, Dungo filed a motion to quash for lack of probable cause,6 but it was
denied by the trial court because the ground cited therein was not provided by law and
jurisprudence. When arraigned, the petitioners pleaded not guilty to the crime
charged.7 Thereafter, trial ensued.
Version of the Prosecution
The prosecution presented twenty (20) witnesses to prove the crime charged. Their
testimonies are summarized as follows:LawlibraryofCRAlaw
At around 3:20 o'clock in the morning of January 14, 2006, the victim Marlon Villanueva
(Villanueva) was brought to the emergency room of Dr. Jose P. Rizal District Hospital (JP
Rizal Hospital). Dr. Ramon Masilungan (Dr. Masilungan), who was then the attending
physician at the emergency room, observed that Villanueva was motionless, not breathing
and had no heartbeat. Dr. Masilungan tried to revive Villanueva for about 15 to 30 minutes.
Villanueva, however, did not respond to the resuscitation and was pronounced dead. Dr.
Masilungan noticed a big contusion hematoma on the left side of the victim's face and
several injuries on his arms and legs. He further attested that Villanueva's face was
cyanotic, meaning that blood was no longer running through his body due to lack of
oxygen; and when he pulled down Villanueva's pants, he saw large cpntusions on both
legs, which extended from the upper portion of the thighs, down to the couplexial portion,
or back of the knees.
Dr. Masilungan disclosed that two (2) men brought Villanueva to the hospital. The two told
him that they found Villanueva lying motionless on the ground at a store in Brgy. Pansol,
Calamba City, and brought him to the hospital. When he asked them where they came
from, one of them answered that they came from Los Baos, Laguna, en route to San
Pablo City. He questioned them on how they found Villanueva, when the latter was in Brgy.
Pansol, Calamba City. One of the men just said that they were headed somewhere else.
Dr. Masilungan reduced his findings in a medico-legal report.8 Due to the nature, extent
and location of the injuries, he opined that Villanueva was a victim of hazing. He was
familiar with hazing injuries because he had undergone hazing himself when he was a
student and also because of his experience in treating victims of hazing incidents.
Dr. Roy Camarillo (Dr. Camarillo), Medico-Legal Officer of the Philippine National Police
Crime Laboratory (PNP-CL) in Region IV, Camp Vicente Lim, Canlubang, Calamba City,
testified that he performed an autopsy on the body of Villanueva on January 14, 2006 and
placed down his findings in an autopsy report.9 Upon examination of the body, he found
various external injuries in the head, trunk and extremities. There were thirty-three (33)
external injuries, with various severity and nature. He concluded that the cause of death
was subdural hemorrhage due to head injury contusion-hematoma. Based on multiple
injuries and contusions on the body, and his previous examinations of hazing injuries, Dr.
Camarillo opined that these injuries were hazing-related. During the autopsy, he retrieved
two (2) matchsticks from the cadaver with the marking of Alpha Phi Omega (APO)
Fratemity.10redarclaw
Susan Ignacio (Ignacio) was the owner of the sari-sari store located at Purok 5, Pansol,
Calamba City, in front of Villa Novaliches Resort, which was barely ten steps away. On
January 13, 2006, at around 8:30 to 9:00 o'clock in the evening, she was tending her store
when she saw a jeepney with more than twenty (20) persons arrive at the resort. Ignacio
identified Dungo as the person seated beside the driver of the jeepney.11 She estimated
the ages of these persons in the group to be between 20 to 30 years old. They were in
civilian clothes, while the other men wore white long-sleeved shirts. Before entering the
resort, the men and women shook hands and embraced each other. Three (3) persons,
riding on a single motorcycle, also arrived at the resort.
Ignacio saw about fifteen (15) persons gather on top of the terrace of the resort who looked
like they were praying, and then the lights of the resort were turned off. Later that evening,
at least three (3) of these persons went to her store to buy some items. During her
testimony, she was shown photographs and she identified Christopher Braseros and Sibal
as two of those who went to her store.12 It was only on the morning of January 14, 2006
that she learned from the policemen visiting the resort that the deceased person was
Villanueva.
Donato Magat (Magat), a tricycle driver plying the route of Pansol, Calamba City, testified
that at around 3:00 o'clock in the morning of January 14, 2006, he was waiting for
passengers at the comer of Villa Novaliches Resort. A man approached him and told him
that someone inside the resort needed a ride. Magat went to the resort and asked the two
(2) men at the gate who needed a ride. Afterwards, he saw three (3) men in their 20's
carrying another man, who looked very weak, like a vegetable, towards his tricycle. Magat
touched the body of the man being carried and sensed it was cold.
Magat asked the men what happened to their companion. They replied that he had too
much to drink. Then they instructed Magat to go to the nearest hospital. He drove the
tricycle to JP Rizal Hospital. Upon their arrival, two of his passengers brought their
unconscious companion inside the emergency room, while their other companion paid the
tricycle fare. Magat then left to go home. Several days after, he learned that the person
brought to the hospital had died.
Abelardo Natividad (Natividad) and Seferino Espina y Jabay (Espina) were the security
guards on duty at JP Rizal Hospital, from 11:00 o'clock in the evening of January 13, 2006
until 7:00 o'clock in the morning of January 14, 2006. In the early morning of January 14,
2006, two men, who signed on the logbook13 under the names Brandon Gonzales and
Jerico Paril, brought the lifeless body of a person. Pursuant to the standard operating
procedure of the hospital, the security guards did not allow the two men to leave the
hospital because they called the police station so that an investigation could be conducted.
Two policemen arrived later at the hospital. During his testimony, Natividad identified Sibal
and Dungo as the two persons who brought Villanueva to the hospital.
PO2 Alaindelon Ignacio (PO2 Ignacio) testified that on January 14, 2006 at around 3:30
o'clock in the early morning, Natividad called up the PNP Calamba City Station to report
that a lifeless body of a man was brought to JP Rizal Hospital. When PO2 Ignacio arrived,
he saw Villanueva's corpse with contusions and bite marks all over his body. PO2 Ignacio
and his policemen companions then brought Dungo and Sibal to the police station. He
asked them about what happened, but they invoked their right to remain silent. The
policemen then proceeded to Brgy. Pansol at around 9:00 o'clock in the morning. After
finding Villa Novaliches Resort, they knocked on the door and the caretaker, Maricel
Capillan (Capillan), opened it.
The police asked Capillan if there were University of the Philippines Los Baos (UP Los
Baos) students who rented the resort on the evening of January 13, 2006. Capillan said
yes and added that about twenty (20) persons arrived onboard a jeepney and told her that
they would be renting the resort from 9:30 o'clock in the evening up to 7:00 o'clock the
following mornmg.
Gay Czarina Sunga (Sunga) was a food technology student at UP Los Baos during the
academic year of 2005-2006 and a member of the Symbiosis UPLB Biological Society.
Around 3:00 o'clock in the afternoon of January 13, 2006, she was at their
organization's tambayan in the UPLB Biological Sciences Building, when she noticed three
(3) men seated two meters away from her. She identified the two of the three men as Sibal
and Dungo.14 They were wearing black shirts with the logo of APO. Later at 5:00 o'clock in
the afternoon, two more men arrived and, with their heads bowed, approached the three
men. One of thm was Villanueva, who was carrying a 5-gallon water container. Dungo then
stood up and asked Villanueva why the latter did not report to him when he was just at
their tambayan. Dungo then punched Villanueva twice, but the latter just kept quiet with his
head bowed. Fifteen minutes later, all the men left.
Joey Atienza (Atienza) had been a good friend of Villanueva since 2004. They were
roommates at the UP Los Baos Men's Dormitory and housemates at the DPS Apartment
in Umali Subdivision, Los Baos, Laguna. According to Atienza, on January 9, 2006,
Villanueva introduced him to Daryl Decena (Decena) as his APO - Theta Chapter
batchmate, who was also to undergo final initiation rites on January 13, 2006.
Severino Cuevas, Director of the Students Affairs at UP Los Baos, testified that Dungo
and Sibal were both members of the APO Fraternity, and that there was no record of any
request for initiation or hazing activity filed by the said fraternity.
McArthur Padua of the Office of the Registrar, UP Los Baos, testified that Villanueva was
a B.S. Agricultural Economics student at the UP Los Baos,15 as evidenced by his official
transcript of record.16redarclaw
Atty. Eleno Peralta and Dina S. Carlos, officers of the Student Disciplinary Tribunal (SDT)
of the UP Los Baos, testified that an administrative disciplinary case was filed on March
31, 2006 against the APO Fraternity regarding the death of Villanueva. They confirmed that
Capilla of Villa Novaliches Resort and Irene Tan (Tan) of APO Sorority Theta Chapter
appeared as witnesses for the complainant.17redarclaw
Roman Miguel De Jesus, UP - Office of the Legal Aid (UP-OLA) supervising student,
testified that he met Tan of the APO Sorority sometime between July and August 2006 in
UP Diliman to convince her to testify in the criminal case. Tan, however, refused because
she feared for her safety. She said that after testifying in the SDT hearing, her place in
Imus, Cavite was padlocked and vandalized.
Evelyn Villanueva, mother of victim Villanueva, testified that, as a result of the death of her
son, her family incurred actual damages consisting of medical, burial and funeral expenses
in the aggregate amount of P140,000.00 which were evidenced by receipts.18 Her husband
also incurred travel expenses in the amount of P7,000.00 in returning to the Philippines to
attend his son's wake and burial, as supported by a plane ticket.19 She further attested that
she experienced mental anguish, sleepless nights, substantial weight loss, and strained
family relationship as a result of her son's death.
Version of the Defense
The defense presented seven (7) witnesses to prove the innocence of the petitioners. Their
testimonies are summarized as follow:LawlibraryofCRAlaw
Richard Cornelio (Cornelio), an APO Fraternity member, testified that on January 13, 2006,
around 4:00 to 4:30 o'clock in the afternoon, he met Dungo at the UP Los Baos Graduate
School. Dungo asked him if he would attend the initiation ceremony, and Cornelio
answered in the negative because he had other things to do. At 10:00 o'clock in the
evening of the same day, Cornelio again met Dungo and his girlfriend while eating a
hamburger at the Burger Machine along; Raymundo Street, Umali Subdivision, Los Baos,
Laguna (Raymundo Street). He asked Dungo if he would attend the initiation ceremony.
Dungo replied that he would not because he and his girlfriend had something to do.

Ana Danife Rivera (Rivera), the girlfriend of Dungo, testified that on January 13, 2006 at
around 1:00 o'clock in the afternoon, Dungo came and visited her at her boarding house on
Raymundo Street. Around 4:00 o'clock of the same afternoon, they went to the UP Los
Baos Graduate School and saw Cornelio. Afterwards, they went back to her boarding
house and stayed there from 5:00 o'clock in the afternoon to 7:00 o'clock in the evening.
Then, they went to Lacxo Restaurant for dinner and left at around 10:00 o'clock in the
evening. On their way back to her boarding house, they encountered Cornelio again at the
Burger Machine. Dungo then stayed and slept at her boarding house. Around 2:00 o'clock
in the early morning of January 14, 2006, they were roused from their sleep by a phone call
from Sibal, asking Dungo to go to a resort in Pansol, Calamba City. Dungo then left the
boarding house.
Dungo testified that around 1:00 o'clock in the early afternoon of January 13, 2006, he
arrived at the boarding house of his girlfriend, Rivera, on Raymundo Street. At around 4:00
o'clock in the afternoon, they went to the UP Los Baos Graduate School and inquired
about the requirements for a master's degree. They walked back to the boarding house
and met Cornelio. They talked about their fraternity's final initiation ceremony for that night
in Pansol, Calamba City. Dungo and Rivera then reached the latter's boarding house
around 5:00 o'clock in the afternoon. At around 7:00 o'clock in the evening, they went out
for dinner at the Lacxo Restaurant, near Crossing Junction, Los Baos. They ate and
stayed at the restaurant for at least one and a half hours. Then they walked back to the
boarding house of Rivera and, along the way, they met Cornelio again at the Burger
Machine along Raymundo Street. Cornelio asked Dungo if he would attend their fraternity's
final initiation ceremony, to which he replied in the negative. Dungo and Rivera reached the
boarding house around 9:00 o'clock in the evening and they slept there.
Around 2:00 o'clock in the early morning of January 14, 2006, Dungo was roused from his
sleep because Sibal was calling him on his cellphone. Sibal asked for his help, requesting
him to go to Villa Novaliches Resort in Pansol, Calamba City. Upon Dungo's arrival at the
resort, Sibal led him inside. There, he saw Rudolfo Castillo (Castillo), a fellow APO
fraternity brother, and Villanueva, who was unconscious. Dungo told them that they should
bring Villanueva to the hospital. They all agreed, and Castillo called a tricycle that brought
them to JP Rizal Hospital. He identified himself before the security guard as Jerico Paril
because he was scared to tell his real name.
Gilbert Gopez (Gopez) testified that he was the Grand Chancellor of the APO- Theta
Chapter for years 2005-2006. At around 7:00 o'clock in the evening of January 13, 2006,
he was at the tambayan of their fraternity in UP Los Baos because their neophytes would
be initiated that night. Around 8:30 o'clock in the evening, they met their fraternity brothers
in Bagong Kalsada, Los Baos. He noticed that their neophyte, Villanueva, was with
Castillo and that there was a bruise on the left side of his face. Then they boarded a
jeepney and proceeded to Villa Novaliches Resort in Pansol, Calamba City. There, Gopez
instructed Sibal to take Villanueva to the second floor of the resort. He confronted Castillo
as to what happened to Villanueva. Around 11:00 or 11:30 o'clock in the evening, Gopez
decided to cancel the final rites. He told Sibal to stay at the resort and accompany
Villanueva and Castillo. Together with the other neophytes, Gopez left the resort and went
back to UP Los Baos.
Sibal testified that he was a DOST Scholar at the UP Los Baos from 2002 to 2006, taking
up B.S. Agricultural Chemistry. He was a Brother Actuary of the APO - Theta Chapter, and
was in charge of fraternity activities, such as tree planting, free medical and dental
missions, and blood donations. On January 13, 2006, at around 6:00 o'clock in the
evening, he was at the fraternity's tambayan for the final initiation rites of their neophytes.
After preparing the food for the initiation rites, Sibal, together with some neophytes, went to
Bagong Kalsada, Los Baos, where he saw fellow fraternity brother Castillo with their
neophyte Villanueva, who had a bruised face. Thereafter, they boarded a jeepney and
proceeded to Villa Novaliches Resort in Pansol, Calamba City. Once inside the resort, he
accompanied Villanueva upstairs for the latter to take a rest. A few minutes later, he went
down and confronted Castillo about the bruises on Villanueva's face. He was angry and
irritated with Castillo. He then stayed outside the resort until Gopez and the other
neophytes came out and told him that the final initiation rite was cancelled, and that they
were returning to UP Los Baos. Sibal wanted to go with them but he was ordered to stay
with Villanueva and Castillo.
After the group of Gopez left, Sibal checked on the condition of Villanueva, who was
sleeping on the second floor of the resort. Then he went outside for one hour, or until 1:00
o'clock in the early morning of January 14, 2006. Sibal entered the resort again and saw
Villanueva, who looked unconscious, seated in one of the benches on the ground floor.
Sibal inquired about Villanueva's condition but he was ignored by Castillo. He then called
Dungo for help. After Dungo arrived at the resort, they hailed a tricycle and brought
Villanueva to JP Rizal Hospital. There, he gave a false name to the security guard as he
heard that Dungo had done the same.
The RTC Ruling
On February 23, 2011, the RTC found Dungo and Sibal guilty of the crime of violating
Section 4 of the Anti-Hazing Law and sentenced them to suffer the penalty of reclusion
perpetua. The trial court stated that the prosecution established the presence of Dungo
and Sibal (1) at the UP Los Baos Campus on January 13, 2006 around 3:0.0 o'clock in
the afternoon, by the testimony of Sunga and (2) at the Villa Novaliches Resort around
9:00 o'clock in the evening of the same day by the testimony of Ignacio. With the extensive
testimonies of Dr. Masilungan and Dr. Camarillo, the prosecution also proved that
Villanueva died from hazing injuries.
According to the RTC, the evidence of the prosecution undeniably proved that Villanueva,
a UP Los Baos student, was a neophyte of the APO - Theta Chapter Fraternity; that
Dungo and Sibal were members of the said fraternity; that on the evening of January 13,
2006, Dungo and Sibal, together with the other fraternity members, officers and alumni,
brought and transported Villanueva and two other neophytes to Villa Novaliches Resort at
Barangay Pansol, Calamba City, for the final initiation rites; that the initiation rites were
conducted inside the resort, performed under the cover of darkness and secrecy; that due
to the injuries sustained by Villanueva, the fraternity members and the other two neophytes
haphazardly left the resort; and that Dungo and Sibal boarded a tricycle and brought the
lifeless body of Villanueva to JP Rizal Hospital, where Villanueva was pronounced dead.
The RTC explained that even if there was no evidence that Dungo and Sibal participated to
bodily assault and harm the victim, it was irrefutable that they brought Villanueva to the
resort for their final initiation rites. Clearly, they did not merely induce Villanueva to attend
the final initiation rites, but they also brought him to Villa Novaliches Resort.
The RTC held that the defense of denial and alibi were self-serving negative assertions.
The defense of denial and alibi of Dungo, which was corroborated by the testimony of his
girlfriend Rivera and his co-fraternity brother, could not be given credence. The witnesses
presented by the defense were partial and could not be considered as disinterested
parties. The defense of denial of Sibal likewise failed. The corroborative testimonies of his
fraternity brothers were suspect because they had so much at stake in the outcome of the
criminal action.
The decretal portion of the decision reads:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
WHEREFORE, the Court finds the accused Dandy Dungo and Gregorio Sibal GUILTY of
violating Section 4 of the Anti-Hazing Law and sentenced them to suffer the penalty
of RECLUSION PERPETUA and order them to jointly and severally pay the family/heirs of
Deceased Marlon Villanueva the following sums of money:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
1. P141,324.00 for and as actual damages;
2. P200,000.00 for and as moral damages;
3. P100,000.00 for and as exemplary damages; and
4. P50,000.00 for the death of Marlon Villanueva.
SO ORDERED.20
Aggrieved, the petitioners filed a notice of appeal. In their brief, they contended that the
prosecution failed to establish their guilt beyond reasonable doubt for violating R.A. No.
8049. They also assailed the constitutionality of Section 4 of the said law, which stated that
mere presence in the hazing was prima facie evidence of participation therein, because it
allegedly violated the constitutional presumption of innocence of the accused.
The CA Ruling
The CA ruled that the appeal of Dungo and Sibal was bereft of merit. It stated that, in
finding them guilty of violating R.A. No. 8049, the RTC properly relied on circumstantial
evidence adduced by the prosecution. The CA painstakingly discussed the unbroken chain
of circumstantial evidence to convict Dungo and Sibal as principals in the crime of hazing.
It further found that the defense of denial and alibi of Dungo and Sibal failed to cast doubt
on the positive identification made by the prosecution witnesses; and that denial, being
inherently weak, could not prevail over the positive identification of the accused as the
perpetrators of the crime.
The CA also stated that Dungo and Sibal were not only convicted based on their presence
in the venue of the hazing, but also in their act of bringing the victim to Villa Novaliches
Resort for the final initiation rites.
The dispositive portion of the decision reads:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
WHEREFORE, premises considered, the February 23, 2011 Decision of the Regional Trial
Court, Branch 36 of Calamba City in CRIM. Case No. 13958-2006-C, finding accused-
appellant guilty beyond reasonable doubt of Violation of R.A. 8049 is hereby AFFIRMED in
TOTO.
SO ORDERED.21
Dungo and Sibal moved for reconsideration but their motion was denied by the CA in the
assailed October 8, 2013 Resolution.
Hence, this petition.
ChanRoblesVirtualawlibrary
SOLE ASSIGNMENT OF ERROR
THE JUDGMENTS OF THE RTC AND THE CA A QUO CONSTITUTE A VIOLATION OF
THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO BE INFORMED OF THE
NATURE AND CAUSE OF ACCUSATION AGAINST THEM BECAUSE THE OFFENSE
PROVED AS FOUND AND PRONOUNCED THEREBY IS DIFFERENT FROM THAT
CHARGED IN THE INFORMATION, NOR DOES ONE INCLUDE OR NECESSARILY
INCLUDE THE OTHER.22
Petitioners Dungo and Sibal argue that the amended information charged them as they
"did then and there willfully, unlawfully and feloniously assault and use personal violence
upon one Marlon Villanueva y Mejilla."23 Yet, both the RTC and the CA found them guilty of
violating R.A. No. 8049 because they "[i]nduced the victim to be present"24 during the
initiation rites. The crime of hazing by inducement does not necessarily include the criminal
charge of hazing by actual participation. Thus, they cannot be convicted of a crime not
stated or necessarily included in the information. By reason of the foregoing, the petitioners
contend that their constitutional right to be informed of the nature and cause of accusation
against them has been violated.
In its Comment,25 filed on May 23, 2014, the Office of the Solicitor General (OSG) asserted
that Dungo and Sibal were charged in the amended information with the proper offense
and convicted for such. The phrases "planned initiation" and "in conspiracy with more or
less twenty members and officers" in the amended information sufficiently cover "knowingly
cooperated in carrying out the hazing by inducing the victim to be present thereat." The
planned initiation rite would not have been accomplished were it not for the acts of the
petitioners in inducing the victim to be present thereat and it was obviously conducted in
conspiracy with the others.26redarclaw
In their Reply27 filed on September 10, 2014, Dungo and Sibal insisted that there was a
variance between the offense charged of "actually participated in the infliction of physical
harm," and the offense "knowingly cooperated in carrying out the hazing by inducing the
victim to be present thereat."28 The prosecution, moreover, failed to establish conspiracy
because no act or circumstance was proved pointing to a joint purpose and design
between and among the petitioners and the other twenty accused.
The Court's Ruling
The petition lacks merit.
Procedural Matter
An appeal is a proceeding undertaken to have a decision reconsidered by bringing it to a
higher court authority.29 The right to appeal is neither a natural right nor is it a component
of due process. It is a mere statutory privilege, and may be exercised only in the manner
and in accordance with the provisions oflaw.30redarclaw
Section 13(c), Rule 124 of the Revised Rules of Criminal Procedure, as amended by A.M.
No. 00-5-03, dated October 15, 2004, governs the procedure on the appeal from the CA to
the Court when the penalty imposed is either reclusion perpetua or life
imprisonment.31 According to the said provisiOn, "[i]n cases where the Court of Appeals
imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter
judgment imposing such penalty. The judgment may be appealed to the Supreme Court
by notice of appeal filed with the Court of Appeals."
Hence, an accused, upon whom the penalty of reclusion perpetua or life imprisonment had
been imposed by the CA, can simply file a notice of appeal to allow him to pursue an
appeal as a matter of right before the Court. An appeal in a criminal case opens the entire
case for review on any question including one not raised by the parties.32 Section 13(c),
Rule 124 recognizes the constitutionally conferred jurisdiction of the Court in all criminal
cases in which the penalty imposed is reclusion perpetua or higher.33redarclaw
An accused, nevertheless, is not precluded in resorting to an appeal by certiorari to the
Court via Rule 45 under the Rules of Court. An appeal to this Court by petition for review
on certiorari shall raise only questions of law.34 Moreover, such review is not a matter of
right, but of sound judicial discretion, and will be granted only when there are special and
important reasons.35redarclaw
In other words, when the CA imposed a penalty of reclusion perpetua or life imprisonment,
an accused may: (1) file a notice of appeal under Section 13(c), Rule 124 to avail of an
appeal as a matter of right before the Court and open the entire case for review on any
question; or (2) file a petition for review on certiorari under Rule 45 to resort to an appeal
as a matter of discretion and raise only questions of law.
In this case, the CA affirmed the RTC decision imposing the penalty of reclusion
perpetua upon the petitioners. The latter opted to appeal the CA decision via a petition
for certiorari under Rule 45. Consequently, they could only raise questions of law. Oddly,
the petitioners began to assail the existence of conspiracy in their reply,36 which is a
question of fact that would require an examination of the evidence presented. In the
interest of justice, however, and due to the novelty of the issue presented, the Court deems
it proper to open the whole case for review.37redarclaw
Substantive Matter
In our contemporary society, hazing has been a nightmare of parents who send their
children to college or university. News of deaths and horrible beatings primarily among
college students due to hazing injuries continue to haunt us. Horrid images of eggplant-like
buttocks and thighs and pounded arms and shoulders ofyoung men are depicted as a
fervent warning to those who dare undergo the hazing rites. The meaningless death of
these promising students, and the agony, cries and ordeal of their families, resonate
through the very core of our beings. But no matter how modem and sophisticated our
society becomes, these barbaric acts of initiation of fraternities, sororities and other
organizations continue to thrive, even within the elite grounds of the academe.
The history and phenomenon of hazing had been thoroughly discussed in the recent case
of Villareal v. People.38 It is believed that the fraternity system and its accompanying
culture of hazing were transported by the Americans to the Philippines in the late 19th
century.39 Thus, a study of the laws and jurisprudence of the United States (US) on hazing
can enlighten the current predicament of violent initiations in fraternities, sororities and
other organizations.
United States Laws and Jurisprudence on Hazing
There are different definitions of hazing, depending on the laws of the states.40 In the case
of People v. Lenti,41 the defendant therein challenged the constitutionality of the state law
defining hazing on the ground of vagueness. The court rejected such contention and held
that it would have been an impossible task if the legislature had attempted to define hazing
specifically because fraternal organizations and associations never suffered for ideas in
contriving new forms of hazing. Presently, the acceptable definition of hazing is the
practice of physically or emotionally abusing newcomers to an organization as a means of
initiation.42redarclaw
Hazing can be classified into various categories including, but not limited to, acts of
violence, acts of humiliation, sexual-related acts, and alcohol-related acts.43 The physical
form of hazing may include beating, branding, paddling, excessive exercise, drinking, and
using drugs. Sexual hazing have included simulated sex acts, sodomy and forced
kissing.44 Moreover, hazing does not only result in physical injuries and hospitalization, but
also lead to emotional damage and traumatic stress.45redarclaw
Based on statistics and alarming frequency of hazing, states have attempted to combat
hazing through the passage of state laws that prohibit such acts.46 Forty-four states, with
the exception of Alaska, Hawaii, Montana, New Mexico, South Dakota, and Wyoming,
have passed antihazing laws.47 The severity of these laws can range from minor penalties
to a prison sentence for up to six years.48 In the states of Illinois, Idaho, Missouri, Texas,
Virginia, Wisconsin, hazing that result in death or "great bodily harm" is categorized as a
felony.49redarclaw
In Florida, the Chad Meredith Act,50 a law named after a student who died in a hazing
incident, was enacted on July 1, 2005. It provides that a person commits a third degree
felony when he or she intentionally or recklessly commits any act of hazing and the hazing
results in serious bodily injury or death. If a person only creates substantial risk of physical
injury or death, then hazing is categorized as a first degree misdemeanor. A similar
provision can be observed in the Penal Law ofNew York.51redarclaw
Interestingly, some states included notable features in their antihazing statute to increase
its effectiveness. In Alabama, Arkansas, Massachusetts, New Hampshire, South Carolina
and Texas, the law imposes a duty on school personnel to report hazing.52 In fact, in
Alabama, no person is allowed to knowingly permit, encourage, aid, or assist any person in
committing the offense of hazing, or willfully acquiesces in its commission.53redarclaw
Also, some states enacted statutes that have been interpreted to mean that persons are
guilty of hazing even if they have the consent of the victim.54 In New Jersey, consent is not
a defense to a hazing charge, and its law permits the prosecution of offenders under other
applicable criminal statutes.55 By including these various provisions in their anti-hazing
statutes, these states have removed the subjective inquiry of consent from consideration,
thus, presumably allowing courts to effectively and properly adjudicate hazing
cases.56redarclaw
In the US, hazing victims can either file a criminal action, based on anti-hazing statutes, or
a civil suit, arising from tort law and constitutional law, against the members of the local
fraternity, the national fraternity and even against the university or college
concerned.57 Hazing, which threatens to needlessly harm students, must be attacked from
whatever legal means are possible.58redarclaw
In State v. Brown,59 a member of the Alpha Kappa Alpha at Kent State University was
indicted for complicity to hazing. The group physically disciplined their pledges by forcing
them to stand on their heads, beating them with paddles, and 'smacking and striking
initiates in the face and head. The Ohio court held that evidence presented therein was
more than sufficient to sustain a conviction.
Excessive intake of alcohol in the fraternity initiations can be considered as hazing. In Oja
v. Grand Chapter of Theta Chi Fraternity Inc.,60 a 17-year old college freshman died as a
result of aspirating his own vomit after consuming excessive amounts of alcohol in a
fraternity initiation ritual. The defendants in the said case contended that they only
furnished the alcohol drinks to the victim. The court denied the defense because such acts
of the fraternity effectively contributed to the death of the victim as part of their hazing.
Even in high school, hazing could exist. In Nice v. Centennial Area School District,61a
tenth-grade wrestler at William Tennet High School was subjected to various forms of
hazing, including a ritual where the victim was forcibly held down, while a teammate sat on
his face with his buttocks exposed. The parents of the student sued the school because it
failed to prevent the incident despite its knowledge of the hazing rites. The court approved
the settlement ofthe parties in the amount of US$151,000.00.
More recently, the case of Yost v. Wabash College62 involved the hazing of an 18-year old
freshman, who suffered physical and mental injuries in the initiation rites conducted by the
Phi Kappa Psi fraternity. As a pledge, the victim was thrown into a creek and was placed in
a chokehold, until he lost consciousness. The court upheld that action against the local
fraternity because, even if the student consented, the fraternity had the duty to ensure the
safety of its activities.
The US anti-hazing laws and jurisprudence show that victims of hazing can properly attain
redress before the court. By crafting laws and prosecuting offenders, the state can address
the pistinct dilemma of hazing.
Anti-Hazing Law in the Philippines
R.A. No. 8049, or the Anti-Hazing Law of 1995, has been enacted to regulate hazing and
other forms of initiation rites in fraternities, sororities, and other organizations. It was in
response to the rising incidents of death of hazing victims, particularly the death of
Leonardo "Lenny" Villa.63 Despite its passage, reports of deaths resulting from hazing
continue to emerge. Recent victims were Guillo Servando of the College of St. Benilde,
Marc Andre Marcos and Marvin Reglos of the San Beda College - Manila, and Cris
Anthony Mendez of the University of the Philippines - Diliman. With the continuity of these
senseless tragedies, one question implores for an answer: is R.A. No. 8049 a sufficient
deterrent against hazing?
To answer the question, the Court must dissect the provisions of the law and scrutinize its
effect, implication and application.
Criminal law has long divided crimes into acts wrong in themselves called acts mala in se;
and acts which would ot be wrong but for the fact that positive law forbids them, called
acts mala prohibita. This distinction is important with reference to the intent with which a
wrongful act is done. The rule on the subject is that in acts mala in se, the intent governs;
but in acts mala prohibita, the only inquiry is, has the law been violated? When an act is
illegal, the intent of the offender is immaterial.64When the doing of an act is prohibited by
law, it is considered injurious to public welfare, and the doing of the prohibited act is the
crime itself.65redarclaw
A common misconception is that all mala in se crimes are found in the Revised Penal
Code (RPC), while all mala prohibita crimes are provided by special penal laws. In reality,
however, there may be mala in se crimes under special laws, such as plunder under R.A.
No. 7080, as amended.66redarclaw
Similarly, there may be mala prohibita crimes defined in the RPC, such as technical
malversation.67redarclaw
The better approach to distinguish between mala in se and mala prohibita crimes is the
determination of the inherent immorality or vileness of the penalized act. If the punishable
act or omission is immoral in itself, then it is a crime mala in se; on the contrary, if it is not
immoral in itself, but there is a statute prohibiting its commission by reasons of public
policy, then it is mala prohibita. In the final analysis, whether or not a crime involves moral
turpitude is ultimately a question of fact and frequently depends on all the circumstances
surrounding the violation of the statute.68redarclaw
The crime of hazing under R.A. No. 8049 is malum prohibitum. The Senate deliberations
would show that the lawmakers intended the antihazing statute to be malum prohibitum, as
follows:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
SENATOR GUINGONA: Most of these acts, if not all, are already punished under the
Revised Penal Code.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. If hazing is done at present and it results in death, the charge
would be murder or homicide.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. If it does not result in death, it may be frustrated homicide or
serious physical injuries.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. Or, if the person who commits sexual abuse does so it can be
penalized under rape or acts of lasciviousness.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. So, what is the rationale for making a new offense under this
definition of the crime of hazing?
SENATOR LINA. To discourage persons or group of persons either composing a sorority,
fraternity or any association from making this requirement of initiation that has already
resulted in these specific acts or results, Mr. President.
That is the main rationale. We want to send a strong signal across the land that no group
or association can require the act of physical initiation before a person can become a
member without being held criminally liable.
xxx xxx xxx
SENATOR GUINGONA. Yes, but what would be the rationale for that imposition? Because
the distinguished Sponsor has said that he is not punishing a mere organization, he is not
seeking the punishment of an initiation into a club or organization, he is seeking the
punishment of certain acts that resulted in death, etcetera as a result of hazing which are
already covered crimes.
The penalty is increased in one, because we would like to discourage hazing, abusive
hazing, but it may be a legitimate defense for invoking two or more charges or offenses,
because these very same acts are already punishable under the Revised Penal Code.
That is my difficulty, Mr. President.
SENATOR LINA. x x x
Another point, Mr. President, is this, and this is a very telling difference: When a person or
group of persons resort to hazing as a requirement for gaining entry into an
organization, the intent to commit a wrong is not visible or is not present, Mr.
President. Whereas, in these specific crimes, Mr. President, let us say there is death
or there is homicide, mutilation, if one files a case, then the intention to commit a
wrong has to be proven. But if the crime of hazing is the basis, what is important is
the result from the act of hazing.
To me, that is the basic difference and that is what will prevent or deter the sororities or
fraternities; that they should really shun this activity called "hazing." Because, initially,
these fraternities or sororities do not even consider having a neophyte killed or maimed or
that acts of lasciviousness are even committed initially, Mr. President.
So, what we want to discourage is the so-called initial innocent act. That is why there is
need to institute this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang sorority
ay magre-recruit. Wala talaga silang intensiyong makamatay. Hindi ko na babanggitin at
buhay pa iyong kaso. Pero dito sa anim o pito na namatay nitong nakaraang taon, walang
intensiyong patayin talaga iyong neophyte. So, kung maghihintay pa tayo, na saka lamang
natin isasakdal ng murder kung namatay na, ay after the fact ho iyon. Pero, kung sasabihin
natin sa mga kabataan na: "Huwag ninyong gagawin iyong hazing. Iyan ay kasalanan at
kung mamatay diyan, mataas ang penalty sa inyo."
xxx xxx xxx
SENATOR GUINGONA. I join the lofty motives, Mr. President, of the distinguished
Sponsor. But I am again disturbed by his statement that the prosecution does not have to
prove the intent that resulted in the death, that resulted in the serious physical injuries, that
resulted in the acts of lasciviousness or deranged mind. We do not have to prove the
willful intent of the accused in proving or establishing the crime of hazing. This
seems, to me, a novel situation where we create the special crime without having to go into
the intent, which is one of the basic elements of anycnme.
If there is no intent, there is no crime. If the intent were merely to initiate, then there is no
offense. And even the distinguished Sponsor admits that the organization, the intent to
initiate, the intent to have a new society or a new club is, per se, not punishable at all.
What are punishable are the acts that lead to the result. But if these results are not going to
be proven by intent, but just because there was hazing, I am afraid that it will disturb the
basic concepts of the Revised Penal Code, Mr. President.
SENATOR LINA. Mr. President, the act of hazing, precisely, is being criminalized because
in the context of what is happening in the sororities and fraternities, when they conduct
hazing, no one will admit that their intention is to maim or to kill. So, we are already
criminalizing the fact of inflicting physical pain. Mr. President, it is a criminal act and we
want it stopped, deterred, discouraged.
If that occurs, under this law, there is no necessity to prove that the masters.
intended to kill or the masters intended to maim. What is important is the result of
the act of hazing. Otherwise, the masters or those who inflict the physical pain can easily
escape responsibility and say, "We did not have the intention to kill. This is part of our
initiation rites. This is normal. We do not have any intention to kill or maim."
This is the lusot, Mr. President. They might as well have been charged therefore with the
ordinary crime of homicide, mutilation, etcetera, where the prosecution will have a difficulty
proving the elements if they are separate offenses.
xxx xxx xxx
SENATOR LINA. x x x
I am very happy that the distinguished Minority Leader brought out the idea of intent or
whether it is mala in se or mala prohibita. There can be a radical amendment if that is the
point that he wants to go to.
If we agree on the concept, then, maybe, we can just make this a special law on
hazing. We will not include this anymore under the Revised Penal Code. That is a
possibility. I will not foreclose that suggestion, Mr. President.69redarclaw
[Emphases Supplied]
Having in mind the potential conflict between the proposed law and the core principle
of mala in se adhered to under the RPC, the Congress did not simply enact an amendment
thereto. Instead, it created a special law on hazing, founded upon the principle of mala
prohibita.70 In Vedaa v. Valencia,71 the Court noted that in our nation's very recent history,
the people had spoken, through the Congress, to deem conduct constitutive of hazing, an
act previously considered harmless by custom, as criminal.72 The act of hazing itself is not
inherently immoral, but the law deems the same to be against public policy and must be
prohibited. Accordingly, the existence of criminal intent is immaterial in the crime of hazing.
Also, the defense of good faith cannot be raised in its prosecution.73redarclaw
Section 1 of R.A. No. 8049 defines hazing as an initiation rite or practice as a prerequisite
for admission into membership in a fraternity, sorority or organization by placing the recruit,
neophyte or applicant in some embarrassing or humiliating situations such as forcing him
to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to
physical or psychological suffering or injury. From the said definition, the elements of the
crime of hazing can be determined:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
1. That there is an initiation rite or practice as a prerequisite for admission into
membership in a fraternity, sorority or organization;chanRoblesvirtualLawlibrary
2. That there must be a recruit, neophyte or applicant of the fraternity, sorority or
organization; and
3. That the recruit, neophyte or applicant is placed in some embarrassing or
humiliating situations such as forcing him to do menial, silly, foolish and other
similar tasks or activities or otherwise subjecting him to physical or psychological
suffering or injury.
From the said definition of hazing, it is apparent that there must be an initiation rite or
practice performed by the fraternities, sororities or organization. The law, however, did not
limit the definition of these groups to those formed within academic colleges and
universities.74 In fact, the second paragraph of Section 1 provides that the term
"organization" shall include any club or the Armed Forces of the Philippines (AFP),
Philippine National Police (PNP), Philippine Military Academy (PMA), or officer and cadet
corp of the Citizen's Military Training and Citizen's Army Training. Even the president,
manager, director or other responsible officer of a corporation engaged in hazing as a
requirement for employment are covered by the law.75redarclaw
R.A. No. 8049 qualifies that the physical, mental and psychological testing and training
procedure and practices to determine and enhance the physical, mental and psychological
fitness of prospective regular members of the AFP and the PNP, as approved by the
Secretary of National Defense and the National Police Commission, duly recommended by
the Chief of Staff of the AFP and the Director General of the PNP, shall not be considered
as hazing.
And not all forms of initiation rites are prohibited by the law. Section 2 thereof provides that
initiation rites of fraternities, sororities or organizations shall be allowed provided that the
following requisites are met:LawlibraryofCRAlaw
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1. That the fraternity, sorority or organization has a prior written notice to the school
authorities or head of organization;chanRoblesvirtualLawlibrary
2. The said written notice must be secured at least seven (7) days before the
conduct of such initiation;chanRoblesvirtualLawlibrary
3. That the written notice shall indicate:LawlibraryofCRAlaw
a. The period of the initiation activities, which shall not exceed three (3)
days;chanRoblesvirtualLawlibrary
b. The names of those to be subjected to such activities; and
c. An undertaking that no physical violence be employed by
anybody during such initiation rites.
Section 3 of R.A. No. 8049 imposes an obligation to the head of the school or organization
or their representatives that they must assign at least two (2) representatives, as the case
may be, to be present during these valid initiations. The duty of such representative is to
see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or
applicant.
Noticeably, the law does not provide a penalty or sanction to fraternities, sororities or
organizations that fail to comply with the notice requirements of Section 2. Also, the school
and organization administrators do not have a clear liability for non-compliance with
Section 3.
Any person who commits the crime of hazing shall be liable in accordance with Section 4
of the law, which provides different classes of persons who are held liable as principals
and accomplices.
The first class of principals would be the actual participants in the hazing. If the person
subjected to hazing or other forms of initiation rites suffers any physical injury or dies as a
result thereof, the officers and members of the fraternity, sorority or organization who
actually participated in the infliction of physical harm shall be liable as principals.
Interestingly, the presence of any person during the hazing is prima facie evidence of
actual participation, unless he prevented the commission of the acts punishable
herein.76redarclaw
The prescribed penalty on the principals depends on the extent of injury inflicted to the
victim.77 The penalties appear to be similar to that of homicide, serious physical injuries,
less serious physical injuries, and slight physical injuries under the RPC,78with the
penalties for hazing increased one degree higher. Also, the law provides several
circumstances which would aggravate the imposable penalty.79redarclaw
Curiously, although hazing has been defined as consisting of those activities involving
physical or psychological suffering or injury, the penalties for hazing only covered the
infliction of physical harm. At best, the only psychological injury recognized would be
causing insanity to the victim. Conversely, even if the victim only sustained physical injuries
which did not incapacitate him, there is still a prescribed penalty.80redarclaw
The second class of principals would be the officers, former officers, or alumni of the
organization, group, fraternity or sorority who actually planned the hazing.81Although these
planners were not present when the acts constituting hazing were committed, they shall
still be liable as principals. The provision took in consideration the non-resident members
of the organization, such as their former officers or alumni.
The third class of principals would be officers or members of an organization group,
fraternity or sorority who knowingly cooperated in carrying out the hazing by inducing the
victim to be present thereat.82 These officers or members are penalized, not because of
their direct participation in the infliction of harm, but due to their indispensable cooperation
in the crime by inducing the victim to attend the hazing.
The next class of principals would be the fraternity or sorority's adviser who was present
when the acts constituting hazing were committed, and failed to take action to prevent
them from occurring.83 The liability of the adviser arises, not only from his mere presence in
the hazing, but also his failure to prevent the same.
The last class of principals would be the parents of the officers or members of the
fraternity, group, or organization.84 The hazing must be held in the home of one of the
officers or members. The parents must have actual knowledge of the hazing conducted in
their homes and failed to take any action to avoid the same from occurring.
The law also provides for accomplices in the crime of hazing. The school authorities,
including faculty members, who consented to the hazing or who have actual knowledge
thereof, but failed to take any action to prevent the same from occurring shall be punished
as accomplices.85redarclaw
Likewise, the owner of the place where the hazing was conducted can also be an
accomplice to the crime.86 The owner of the place shall be liable when he has actual
knowledge of the hazing conducted therein and he failed to take any steps to stop the
same.
Recognizing the malum prohibitum characteristic of hazing, the law provides that any
person charged with the said crime shall not be entitled to the mitigating circumstance that
there was no intention to commit so grave a wrong.87 Also, the framers of the law intended
that the consent of the victim shall not be a defense in hazing. During the discussion of
whether sodomy shall be included as a punishable act under the law, the issue of consent
was tackled:LawlibraryofCRAlaw
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SENATOR LINA x x x
But sodomy in this case is connected with hazing, Mr. President. Such that the act may
even be entered into with consent. It is not only sodomy. The infliction of pain may be done
with the consent of the neophyte. If the law is passed, that does not make the act of hazing
not punishable because the neophyte accepted the infliction of pain upon himself.
If the victim suffers from serious physical injuries, but the initiator said, "Well, he allowed it
upon himself. He consented to it." So, if we allow that reasoning that sodomy was done
with the consent of the victim, then we would not have passed any law at lflll. There will be
no significance if we pass this bill, because it will always be a defense that the victim
allowed the infliction of pain1 or suffering. He accepted it as part of the initiation rites.
But precisely, Mr. President that is one thing that we would want to prohibit. That the
defense of consent will not apply because the very act of inflicting physical pain or
psychological suffering is, by itself, a punishable act. The result of the act of hazing,
like death: or physical injuries merely aggravates the act with higher penalties. But
the defense of consent is not going to nullify the criminal nature of the act.
So, if we accept the amendment that sodomy can only aggravate the offense if it is
committedr without consent of the victim, then the whole foundation of this proposed law
will collapse.
SENATOR BIAZON. Thank you, Mr. President. SENATOR LINA. Thank you very much.
THE PRESIDENT. Is there any objection to the committee amendment? (Silence.) The
Chair hears none; the same is approved.88redarclaw
[Emphasis supplied]
Further, the law acknowledges that the offended party in the crime of hazing can seek
different courses of action. It provides that the responsible officials of the school or of the
police, military or citizen's army training organization, may impose the appropriate
administrative sanctions on the person or the persons charged under this provision even
before their conviction.89 Necessarily, the offended party can file either administrative, civil,
or criminal actions against the offenders.90redarclaw
The study of the provisions of R.A. No. 8049 shows that, on paper, it is complete and
robust in penalizing the crime of hazing. It was made malum prohibitum to discount
criminal intent and disallow the defense of good faith. It took into consideration the different
participants and contributors in the hazing activities. While not all acts cited in the law are
penalized, the penalties imposed therein involve various and serious terms of
imprisonment to discourage would be offenders. Indeed, the law against hazing is ideal
and profound. As to whether the law can be effectively implemented, the Court begs to
continue on the merits of the case.
The Information properly charged the offense proved
The petitioners claim that the amended information avers a criminal charge of hazing by
actual participation, but the only offense proved during the trial was hazing by inducement.
Their contention must faiL The Amended Information reads:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy.
Pansol, Calamba City, Province of Laguna and within the jurisdiction of the Honorable
Court, the above-named accused, during a plannedinitiation rite and being then officers
and members of Alpha Phi Omega fraternity and present thereat, in conspiracy with more
or less tvventy other members and officers, whose identity is not yet known, did then and
there willfully, unlawfully and feloniously assault and use personal violence upon one
MARLON VILLANUEVA y MEJILLA, a neophyte thereof and as condition for his admission
to the fraternity, thereby subjecting him to physical harm, resulting to his death, to the
damage and prejudice of the heirs of the victim.
CONTRARY TO LAW.91
On the manner of how the Information should be worded, Section 9, Rule 110 of the Rules
of Court, is enlightening:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
Section 9. Cause of the accusation. The acts or omissions complained of as constituting
the offense and the qualifying and aggravating circumstances must be stated in ordinary
and concise language and not necessarily in the language used in the statute but in terms
sufficient to enable a person of common understanding to know what offense is being
charged as well as its qualifying and aggravating circumstances and for the court to
pronounce judgment.
It is evident that the Information need not use the exact language of the statute in alleging
the acts or omissions complained of as constituting the offense. The test is whether it
enables a person of common understanding to know the charge against him, and the court
to render judgment properly.92redarclaw
The Court agrees with the OSG that the "planned initiation rite" as stated in the information
included the act of inducing Villanueva to attend it. In ordinary parlance, a planned event
can be understood to have different phases. Likewise, the hazing activity had different
stages and the perpetrators had different roles therein, not solely inflicting physical injury to
the neophyte. One of the roles of the petitioners in the hazing activity was to induce
Villanueva to be present. Dungo and Sibal not only induced Villanueva to be present at the
resort, but they actually brought him there. They fulfilled their roles in the planned hazing
rite which eventually led to the death of Villanueva. The hazing would not have been
accomplished were it not for the acts of the petitioners that induced the victim to be
present.
Secrecy and silence are common characterizations of the dynamics of hazing.93 To require
the prosecutor to indicate every step of the planned initiation rite in the information at the
inception of the criminal case, when details of the clandestine hazing are almost nil, would
be an arduous task, if not downright impossible. The law does not require the impossible
(lex non cognit ad impossibilia).
The proper approach would be to require the prosecution to state every element of the
crime of hazing, the offenders, and the accompanying circumstances in the planned
initiation activity, which has been satisfied in the present case. Accordingly, the amended
information sufficiently informed the petitioners that they were being criminally charged for
their roles in the planned initiation rite.
Conspiracy of the offenders was duly proven
The petitioners assail that the prosecution failed to establish the fact of conspiracy.
The Court disagrees.
A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. To determine conspiracy, there must be a
common design to commit a felony.94 The overt act or acts of the accused may consist of
active participation in the actual commission of the crime itself or may consist of moral
assistance to his co-conspirators by moving them to execute or implement the criminal
plan.95redarclaw
In conspiracy, it need not be shown that the parties actually came together and agreed in
express terms to enter into and pursue a common design. The assent of the minds may be
and, from the secrecy of the crime, usually inferred from proof of facts and circumstances
which, taken together, indicate that they are parts of some complete
whole.96 Responsibility of a conspirator is not confined to the accomplishment of a
particular purpose of conspiracy but extends to collateral acts and offenses incident to and
growing out of the purpose intended.97redarclaw
The lawmakers deliberated on whether the prosecution was still obliged to prove the
conspiracy between the offenders under R.A. 8049, to wit:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
SENATOR GUINGONA. Mr. President, assuming there was a group that initiated and a
person died. The charge is murder. My question is: Under this bill if it becomes a law,
would the prosecution have to prove conspiracy or not anymore?
SENATOR LINA. Mr. President, if the person is present during hazing x x x
SENATOR GUINGONA. The persons are present. First, would the prosecution have to
prove conspiracy? Second, would the prosecution have to prove intent to kill or not?
SENATOR LINA. No more. As to the second question, Mr. President, if that occurs, there
is no need to prove intent to kill.
SENATOR GUINGONA. But the charge is murder.
SENATOR LINA. That is why I said that it should not be murder. It should be hazing, Mr.
President.98
The Court does not categorically agree that, under R.A. No. 8049, the prosecution need
not prove conspiracy. Jurisprudence dictates that conspiracy must be established, not by
conjectures, but by positive and conclusive evidence. Conspiracy transcends mere
companionship and mere presence at the scene of the crime does not in itself amount to
conspiracy. Even knowledge, acquiescence in or agreement to cooperate, is not enough to
constitute one as a party to a conspiracy, absent any active participation in the commission
of the crime with a view to the furtherance of the common design and purpose.99redarclaw
R.A. No. 8049, nevertheless, presents a novel provision that introduces a disputable
presumption of actual participation; and which modifies the concept of conspiracy. Section
4, paragraph 6 thereof provides that the presence of any person during the hazing is prima
facie evidence of participation as principal, unless he prevented the commission of the
punishable acts. This provision is unique because a disputable presumption arises from
the mere presence of the offender during the hazing, which can be rebutted by proving that
the accused took steps to prevent the commission of the hazing.
The petitioners attempted to attack the constitutionality of Section 4 of R.A. No. 8049
before the CA, but did not succeed. "[A] finding of prima facie evidence x x x does not
shatter the presumptive innocence the accused enjoys because, before prima
facie evidence arises, certain facts have still to be proved; the trial court cannot depend
alone on such evidence, because precisely, it is merely prima facie. It must still satisfy that
the accused is guilty beyond reasonable doubt of the offense charged. Neither can it rely
on the weak defense the latter may adduce."100redarclaw
Penal laws which feature prima facie evidence by disputable presumptions against the
offenders are not new, and can be observed in the following: (1) the possession of drug
paraphernalia gives rise to prima facie evidence of the use of dangerous drug;101 (2) the
dishonor of the check for insufficient funds is. prima facie evidence of knowledge of such
insufficiency of funds or credit;102 and (3) the possession of any good which has been the
subject of robbery or thievery shall be prima facieevidence of fencing.103redarclaw
Verily, the disputable presumption under R.A. No. 8049 can be related to the conspiracy in
the crime of hazing. The common design of offenders is to haze the victim. Some of the
overt acts that could be committed by the offenders would be to (1) plan the hazing activity
as a requirement of the victim's initiation to the fraternity; (2) induce the victim to attend the
hazing; and (3) actually participate in the infliction of physical injuries.
In this case, there was prima facie evidence of the petitioners' participation in the hazing
because of their presence in the venue. As correctly held by the RTC, the presence of
Dungo and Sibal during the hazing at Villa Novaliches Resort was established by the persons whom you said visited your store is here?
testimony of Ignacio. She testified that she saw Sibal emerge from the resort and approach
her store, to wit:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary xxxx

MR. DIMACULANGAN
A: "Siya rin po."

Q: And how many persons from this group did you see again?
COURT:

WITNESS
Make it of record that the witness pinpointed to the first picture appearing on the left
picture on the first row.
A: Three (3), sir.

xxxx
Q: Where did they come from, did they come out from the resort? Where did this 3
people or this group of people coming from?
ATTY. PAMAOS:

A: Inside the resort, sir.

For the record, your Honor, we manifest that the picture and the name pointed by the
witness has been previously marked as Exhibit "L-3" and previously admitted by the
Q: And around what time was this? defense as referring to Gregorio Sibal, Jr., accused in this case...104
Ignacio, also positively identified Dungo as among the guests of Villa Novaliches Resort on
A: Around 9:00, sir. the night of the hazing, to wit:LawlibraryofCRAlaw
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Q: And what did they do if any if they came out of the resort?
COURT

A: They went to my store, sir.

Q: x x x Now, when you say other people you could identify who are not in the pictures
then how would you know that these people are indeed those people you could
xxxx identify?

Q: Did you have any other visitors to your store that night? WITNESS

xxxx A: "lyon pong...di ba po nagkuwento ako na dumating sila tapos nag shake hands at
saka iyong nagyakapan po..."
A: "Meron po".
Q: And what will be the significance of the alleged embrace and shake hands for you to
Q: Who were these visitors? say that you could identify those people?

A: I don't know their names but I recognize their faces, sir. A: "Hindi po: Noong dumating po sila nasa isang jeep, meron pong lalaki doon sa may
tabi ng driver bumaba siya tapos po noong bumaba siya tapas iyong mga
kasamahan nya sa likod nagbaba-an din, iyon po nagbati-an po sila."
Q: If I show you pictures of these people, will you be able to identify them before this
Court.
Q: And from these greeting, how could you identify these people?
A: Yes, sir.
A: "Ngayon ko lang po napag masdan ang taong iyon, hindi ko po alam na akusado po
sa kabila iyon."
xxxx

Q: And who was that person?

Q: Mrs. Ignacio, I am showing you this picture of persons marked as Exhibit "L" in the
Pre-Trial, can you please look over this document carefully and see if any of the
A: "Siya po, iyon po."
Q: Who are you pointing to?
A: "lyon pong naka-dilaw na..." (Witness pointing to Dandy Dungo)
Q: So, are you telling the Court that this person you positively saw seated beside the
driver came out and subsequently embraced and shook hands with the other people
from the jeepney, is that your testimony?
A: Yes, your Honor.105
The testimony of Ignacio was direct and straightforward. Her testimony was given great
weight because she was a disinterested and credible witness. The prosecution indubitably
established the presence of Dungo and Sibal during the hazing. Such gave rise to
the prima facie evidence of their actual participation in the hazing of Villanueva. They were
given an opportunity to rebut and overcome the prima facieevidence of the prosecution by
proving that they prevented the commission of the hazing, yet they failed to do so.
Because of the uncontroverted prima facie evidence against the petitioners, it was shown
that they performed an overt act in the furtherance of the criminal design of hazing. Not
only did they induce the victim to attend the hazing activity, the petitioners also actually
participated in it based on the prima facie evidence. These acts are sufficient to establish
their roles in the conspiracy of hazing.
Hence, generally, mere presence at the scene of the crime does not in itself amount to
conspiracy.106 Exceptionally, under R.A. No. 8049, the participation of the offenders in the
criminal conspiracy can be proven by the prima facie evidence due to their presence during
the hazing, unless they prevented the commission of the acts therein.
The guilt of the petitioners was proven beyond reasonable doubt
Aside from inducing Villanueva to attend the initiation rites and their presence during the
hazing, the petitionersguilt was proven beyond reasonable doubt by the sequence of
circumstantial evidence presented by the prosecution. Their involvement in the hazing of
Villanueva is not merely based on prima facie evidence but was also established by
circumstantial evidence.
In considering a criminal case, it is critical to start with the law's own starting perspective
on the status of the accused - in all criminal prosecutions, he is presumed innocent of the
charge laid unless the contrary is proven beyond reasonable doubt.107 In criminal law,
proof beyond reasonable doubt does not mean such degree of proof that produces
absolute certainty. Only moral certainty is required or that degree of proof which produces
conviction in an unprejudiced mind.108redarclaw
While it is established that nothing less than proof beyond reasonable doubt is required for
a conviction, this exacting standard does not preclude resort to circumstantial evidence
when direct evidence is not available. Direct evidence is not a condition sine qua non to
prove the guilt of an accused beyond reasonable doubt. For in the absence of direct
evidence, the prosecution may resort to adducing circumstantial evidence to discharge its
burden. Crimes are usually committed in secret and under conditions where concealment
is highly probable. If direct evidence is insisted on under all circumstances, the prosecution
of vicious felons who commit heinous crimes in secret or secluded places will be hard, if
not impossible, to prove.109redarclaw
Needless to state, the crime of hazi,ng is shrouded in secrecy. Fraternities and sororities,
especially the Greek organizations, are secretive in nature and their members are reluctant
to give any information regarding initiation rites.110 The silence is only broken after
someone has been injured so severely that medical attention is required. It is only at this
point that the secret is revealed and the activities become public.111 Bearing in mind the
concealment of hazing, it is only logical and proper for the prosecution to resort to the
presentation of circumstantial evidence to prove it.
The rules on evidence and precedents to sustain the conviction of an accused through
circumstantial evidence require the existence of the following requisites: (1) there are more
than one circumstance; (2) the inference must be based on proven facts; and (3) the
combination of all circumstances produces a conviction beyond reasonable doubt of the
guilt of the accused.112 To justify a conviction upon circumstantial evidence, the
combination of circumstances must be such as to leave no reasonable doubt in the mind
as to the criminal liability of the accused. Jurisprudence requires that the circumstances
must be established to form an unbroken chain of events leading to one fair reasonable
conclusion pointing to the accused, to the exclusion of all others, as the author of the
crime.113redarclaw
The CA meticulously wrote in detail the unbroken chain of circumstantial evidence which
established the petitioners' gult in the death of Villanueva as follows:LawlibraryofCRAlaw
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1. Marlon Villanueva is a neophyte of Alpha Phi Omega, as testified by his
roommate Joey Atienza.
2. At around 3:00 o'clock in the afternoon of January 13, 2006, Sunga was staying
at their tambayan, talking to her organization mates. Three men were seated two
meters way from her. She identified two of the men as appellants Sibal and
Dungo, while she did not know the third man. The three men were wearing black
shirts with the seal of the Alpha Phi Omega.
3. Later at 5:00 o'clock in the afternoon, two more men coming from the entomology
wing arrived and approached the three men. Among the men who just arrived
was the victim, Marlon Villanueva. One of the men wearing black APO shirts
handed over to the two fraternity neophytes some money and told the men
"Mamalengke na kayo." He later took back the money and said, "Huwag na, kami
na lang."
4. One of the men wearing a black APO shirt, who was later identified as appellant
Dungo, stood up and asked Marlon if the latter already reported to him, and
asked him why he did not report to him when he was just at the tambayan. Dungo
then continuously punched the victim on his arm. This went on for five minutes.
Marlon just kept quiet with his head bowed down. Fifteen minutes later, the men
left going towards the Entomology wing.
5. The deceased Marlon Villanueva was last seen alive by Joey Atienza at 7:00 in
the evening of 13 January 2006, from whom he borrowed the shoes he wore at
 the initiation right [sic]. Marlon told Joey that it was his "finals" night.
6. On January 13, 2006 at around 8:30 to 9:00 o'clock in the evening, Susan
Ignacio saw more than twenty (20) persons arrive at the Villa Novaliches Resort
onboard a jeepney. She estimated the ages of these persons to be between 20 to
30 years old. Three (3) persons rirling a single motorcycle likewise arrived at the
resort.
7. Ignacio saw about fifteen (15) persons gather on top of the terrace at the resort
who looked like they were praying. Later that evening, at least three (3) of these
persons went to her store to buy some items. She did not know their names but
could identity [sic] their faces. After she was shown colored photographs, she
pointed to the man later identified as Herald Christopher Braseros. She also
pointed out the man later identified as Gregorio Sibal, Jr.
8. Donato Magat, a tricycle driver plying the route of Pansol, Calamba City, testified
that around 3:00 o'clock in the morning of January 14, 2006, he was waiting for
passengers at the corner of Villa Novaliches Resort when a man approached him
and told him that someone inside the resort needed a ride. Magat then went to
the resort and asked the two (2) men standing by the gate who will be riding his
tricycle.
9. The four (4) men boarded his tricycle but Magat noticed that when he touched the
body of the man who was being carried, it felt cold. The said man looked very
weak like a vegetable.
10. Seferino Espina y Jabay testified that he worked as a security guard at the J.P.
Rizal Hospital and was assigned at the emergency room. At around 3:00 o'clock
in the early morning of January 14, 2006, he was with another security guard,
Abelardo Natividad and hospital helper Danilo Glindo a.k.a. Gringo, when a
tricycle arrived at the emergency room containing four (4) passengers, excluding
the driver. He was an arm's length away from said tricycle. He identified two of
the passengers thereof as appellants Dungo and Sibal. Espina said he and
Glindo helped the passengers unload a body inside the tricycle and brought it to
the emergency room.
11. Afterwards, Espina asked the two men for identification cards. The latter replied
that they did not bring with them any I.D. or wallet. Instead of giving their true
names, the appellants listed down their names in the hospital logbook as
Brandon Gonzales y Lanzon and Jericho Paril y Rivera. Espina then told the two
men not to leave, not telling them that they secretly called the police to report the
incident which was their standard operating procedure when a dead body was
brought to the hospital.
12. Dr. Ramon Masilungan, who was then the attending physician at the emergency
room, observed that Marlon was motionless, had no heartbeat and already
cyanotic.
13. Dr. Masilungan tried to revive Marlon for about 15 to 20 minutes. However, the
latter did not respond to resuscitation and was pronounced dead. Dr. Masilungan
noticed a big contusion hematoma on the left side of the victim's face and several
injuries on his arms and legs. He further attested that Marlon's face was already
cyanotic.
14. When Dr. Masilungan pulled down Marlon's pants, he saw a large contusion on
both legs which extended from the upper portion of his thigh down to the
couplexial portion or the back of the knee.
15. Due to the nature, extent and location of Marlon's injuries, Dr. Masilungan opined
that he was a victim of hazing. Dr. Masilungan is familiar with hazing injuries,
having undergone hazing when he was a student and also because of his
experience treating victims of hazing incidents.
16. Dr. Roy Camarillo, Medico-Legal Officer of the PNP Crime Laboratory in Region
IV, Camp Vicente Lim, Canlubang, Calamba City, testified that he performed an
autopsy on the cadaver of the victim on January 14, 2006; that the victim's cause
of death was blunt head trauma. From 1999 to 2006, he was able to conduct
post-mortem examination of the two (2) persons whose deaths were attributed to
hazing. These two (2) persons sustained multiple contusions and injuries on
different parts of their body, particularly on the buttocks, on both upper and lower
extremities. Both persons died of brain hemorrhage. Correlating these two cases
to the injuries found on the victim's body, Dr. Camarillo attested that the victim,
Marlon Villanueva, sustained similar injuries to those two (2) persons. Based on
the presence of multiple injuries and contusions on his body, he opined that these
injuries were hazing-related.114
Petitioners Dungo and Sibal, on the other hand, presented the defense of denial and alibi.
These defenses, however, must fail. Time and time again, this Court has ruled that denial
and alibi are the weakest of all defenses, because they are easy to concoct and
fabricate.115 As properly held by the RTC, these defenses cannot prevail over the positive
and unequivocal identification of the petitioners by prosecution witnesses Sunga and
Ignacio. The testimonies of the defense witnesses also lacked credibility and reliability. The
corroboration of defense witness Rivera was suspect because she was the girlfriend of
Dungo, and it was only logical and emotional that she would stand by the man she loved
and cared for. The testimonies of their fellow fraternity brothers, likewise, do not hold much
weight because they had so much at stake in the outcome of the case. Stated differently,
the petitioners did not present credible and disinterested witnesses to substantiate their
defenses of denial and alibi.
After a careful review of the records, the Court agrees with the CA and the RTC that the
circumstantial evidence presented by the prosecution was overwhelming enough to
establish the guilt of the petitioners beyond a reasonable doubt. The unbroken chain of
events laid down by the CA leaves us no other conclusion other than the petitioners'
participation in the hazing. They took part in the hazing and, together with their fellow
fraternity officers and members, inflicted physical injuries to Villanueva as a requirement of
his initiation to the fraternity. The physical injuries eventually took a toll on the body of the
victim, which led to his death. Another young life lost.
With the fact of hazing, the identity of the petitioners, and their participation therein duly
proven, the moral certainty that produces conviction in an unprejudiced mind has been
satisfied.
Final Note
 *
Designated Acting Member in lieu of Associate Justice Arturo D. Brion, per Special Order
Hazing has been a phenomenon that has beleaguered the country's educational No. 2079, dated June 29, 2015.
institutions and communities. News of young men beaten to death as part of fraternities'
1
violent initiation rites supposedly to seal fraternal bond has sent disturbing waves to Penned by Associate Justice Danton Q. Bueser with Associate Justice Amelita G.
lawmakers. Hence, R.A. No. 8049 was signed into to law on June 7, 1995. Doubts on the Tolentino and Associate Justice Ramon R. Garcia, concurring of Court of Appeals Fourth
effectiveness of the law were raised. The Court, however, scrutinized its provisions and it is Division; rollo, pp. 66-88.
convinced that the law is rigorous in penalizing the crime of hazing.
2
Id. at 90-91.
Hopefully, the present case will serve as a guide to the bench and the bar on the
3
application of R.A. No. 8049. Through careful case-build up and proper presentation of Penned by Presiding Judge Medel Amaldo B. Belen; id. at 30-64.
evidence before the court, it is not impossible for the exalted constitutional presumption of
4
innocence of the accused to be overcome and his guilt for the crime of hazing be proven Records, Vol. I, p. 1.
beyond reasonable doubt. The prosecution must bear in mind the secretive nature of
5
hazing, and carefully weave its chain of circumstantial evidence. Likewise, the defense Id. at 49.
must present a genuine defense and substantiate the same through credible and reliable
6
witnesses. The counsels of both parties must also consider hazing as a malum Id. at 41-44.
prohibitum crime and the law's distinctive provisions.
7
Id. at 58.
While the Court finds R.A. No. 8049 adequate to deter and prosecute hazing, the law is far
from perfect. In Villareal v. People,116 the Court suggested that the fact of intoxication and 8
Id. at 301.
the presence of non-resident or alumni fraternity members during hazing should be
9
considered as aggravating circumstances that would increase the applicable penalties. Id. at 17-22.
Equally, based on the discussion earlier, this Court suggests some further amendments to
10
the law. First, there should be a penalty or liability for noncompliance with Section 2, or the Id. at 325.
written notice requirement, and with Section 3, or the representation requirement. Second,
11
the penalties under Section 4 should also consider the psychological harm done to the TSN Vol. I, June 28, 2006, p. 90.
victim of hazing. With these additional inputs on R.A. No. 8049, the movement against
12
hazing can be invigorated. Id. at 29-31.
13
R.A. No. 8049 is a democratic response to the uproar against hazing. It demonstrates that Records, Vol. I, pp. 331-332.
there must, and should, be another way of fostering brotherhood, other than through the
14
culture of violence and suffering. The senseless deaths of these young men shall never be TSN, Vol. I, August 23, 2006, p. 8.
forgotten, for justice is the spark that lights the candles of their graves.
15
TSN, Vol. II, September 12, 2007, p. 8.
WHEREFORE, the petition is DENIED. The April 26, 2013 Decision and the October 8,
16
2013 Resolution of the Court of Appeals in CAG.R. CR-H.C. No. 05046 are Records, Vol. II, pp. 50-51.
hereby AFFIRMED in toto.
17
Records, Vol. I, pp. 360-407.
Let copies of this Decision be furnished to the Secretary of the Department of Justice as
18
guidance for the proper implementation and prosecution of violators of R.A. No. 8049; and Records, Vol. II, pp. 35-45.
to the Senate President and the Speaker of the House of Representatives for possible
19
consideration of the amendment of the Anti-Hazing Law to include the penalty for non Id. at 46.
compliance with its Section 2 and 3, and the penalty for the psychological harms to the
20
surviving victims of hazing. Rollo, p. 64.
21
SO ORDERED.cralawlawlibrary Id. at 87.

Carpio, (Chairperson), Bersamin,*Del Castillo, and Leonen, JJ., concur. 22

Id. at 15.
23
Endnotes: Records, Vol. I, p. 1.
24
Rollo, p. 86.
 record; see David v. Misamis Occidental II Electric Cooperative, Inc., G.R. No. 194785,
25
Id. at 125-146. July 11, 2012, 676 SCRA 367, 373-374.
26 38
Id. at 137. G.R. Nos. 151258, 154954, 155101, 178057 & 178080, February 1, 2012, 664 SCRA
519.
27
Id. at 153-163.
39
Id. at 562.
28
Rollo, p. 155.
40
Gregory L. Acquaviva, Protecting Students from the Wrongs of Hazing Rites: A Proposal
29
Black's Law Dictionary, 9th ed., p. 112 (2009). for Strengthening New Jersey's Anti-Hazing Act, 26 QUINNIPIAC L. REV. 308 (2008).
30 41
Boardwalk Business Ventures Inc. v. Villareal, G.R. No. 181182, April 10, 2013, 695 253 N.Y. S 2d 9, 1964.
SCRA 468, 477.
42
Black Law's Dictionary, 9th Ed., p. 786 (2009).
31
Rule 124, Sec. 13. Certification or appeal of case to the Supreme Court. -
43
Colleen McGlone & George Schaefer, After The Haze: Legal Aspects of Hazing, 6 ES L.
(a) Whenever the Court of Appeals finds that the penalty of death should be imposed, the J. 1 (2008), citing Nadine Hoover, National Survey: Initiation rites and athletics for NCAA
court shall render judgment but refrain from making an entry ofjudgment and forthwith Sports Team (1999) and Colleen McGlone, Hazing in N.C.A.A Division I Women's
certifY the case and elevate its entire record to the Supreme Court for review. Athletics: An Exploratory Analysis (2005).
44
(b) Where the judgment also imposes a lesser penalty for offenses committed on the same Id. at 39.
occasion or which arose out of the same occurrence that gave rise to the more severe
45
offense for which the penalty of death is imposed, and the accused appeals, the appeal Hank Nuwer & Christopher Bollinger, Chapter 14 - Hazing, Violence Goes to College:
shall be included in the case certified for review to, the Supreme Court. The Authoritative Guide to Prevention and Intervention, p. 207 (2009).
46
(c) In cases where the Court of Appeals imposes reciusion perpetua, life imprisonment or a Tamara Saunders & Chelsee Bente, Hazing Aqjudication Guide - For College and
lesser penalty, it shall render and enter judgment imposing such penalty. The judgment Universities, p. 13 (2013).
may be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals.
47
Id.
32
People v. Torres, et al., G.R. No. 189850, September 22, 2014.
48
Id.
33
Section 5, Article VIII of the 1987 Constitution.
49
Supra note 43, at 30.
34
Metropolitan Bank and Trust Company v. Ley Construction and Development
50
Corporation, G.R. No. 185590, December 3, 2014. F.S. 1006.63; HB 193.
35 51
Section 6, Rule 45 of the Rules of Court. NY PEN. LAW 120.16 - 120.17.
36 52
Rollo, pp. 157-160. Supra note 43, at 30, citing Marc Edelman, How to Prevent High School Hazing: A
Legal, Ethical and Social Primer. 81 N.DAK. L. REV. 309 (2005).
37
Exceptionally, even under the Rule 45, the Court could entertain questions of fact based
53
on the following grounds: (1) When the conclusion is a finding grounded entirely on ALA CODE 16-1-23.
speculation, surmises and conjectures; (2) When the inference made is manifestly
54
mistaken, absurd or impossible; (3) Where there is a grave abuse of discretion: (4) When Hank Nuwer, Wrongs of Passage: Fraternities, Sororities, Hazing, and Binge Drinking, p.
the judgment is based on a misapprehension offacts; (5) When the findings of fact are 170 (2001).
conflicting; (6) When the Court of Appeals, in making its findings, went beyond the issues
55
of the case and the same is contrary to the admissions of both appellant and appellee; (7) N.J. STAT. ANN. 2C:40-3 to 2C:40-4.
When the findings are contrary to those of the trial court; (8) When the findings of fact are
56
without citation of specific evidence on which the conclusions are based;(9) When the facts Gregory Parks and Tiffany Southerland, The Psychology and Law of Hazing Consent, 97
set forth in the petition as well as in the petitioner's main and reply briefs are not disputed MARQUETTE L. REV. 13 (2013).
by the respondents; and (10) When the findings of fact of the Court of Appeals are
57
premised on the supposed absenee of evidence and contradicted by the evidence on Michelle Finkel, Traumatic Injuries Caused By Hazing Practices 20 AM. J. E. M. 232
(2002). 1. The penalty of reclusion perpetua (life imprisonment) if death, rape, sodomy or
mutilation results there from.
58
Janis Doleschal, Legal Strategies to Confront High School Hazing Incidents in the United
States, 2 INTL. SPORTS. LAW. J. 11 (2002). 2. The penalty of reclusion temporal in its maximum period (17 years, 4 months and
1 day to 20 years) if in consequence of the hazing the victim shall become
59
90 Ohio App. 3d 684 (1993). insane, imbecile, impotent or blind.
60
680 N.Y.S. 2d 278-79 (1999). 3. The penalty of reclusion temporal in its medium period (14 years, 8 months and
one day to 17 years and 4 months) if in consequence of the hazing the victim
61
98 F. Supp. 2d 665 (2000). shall have lost the use of speech or the power to hear or to smell, or shall have
lost an eye, a hand, a foot, an arm or a leg or shall have lost the use of any such
62
976 N.E. 2d 724, 728 (2012). member shall have become incapacitated for the activity or work in which he was
habitually engaged.
63
Sponsorship Speech of former Senator Joey Lina, Senate Transcript of Session
Proceedings No. 34 on October 8, 1992 ofthe 9th Congress, 1st Regular Sess. at 21-22 4. The penalty ofreclusion temporal in its minimum period (12 years and one day to
(Senate TSP No. 34). 14 years and 8 months) if in consequence of the hazing the victim shall become
deformed or shall have lost any other part of his body, or shall have lost the use
64
Tan v. Ballena, 519 Phil. 503, 527-528 (2008). thereof, or shall have been ill or incapacitated for the performance on the activity
or work in which he was habitually engaged for a period of more than ninety (90)
65
LUIS B. REYES, THE REVISED PENAL CODE: CRIMINAL LAW-BOOK ONE 56 (17th days.
ed. 2008)
5. The penalty of prison mayor in its maximum period (10 years and one day to 12
66
Estrada v. Sandiganbayan, 421 Phil. 290 (2001); see also Tan v. Ballena, ibid. years) if in consequence of the hazing the victim shall have been ill or
and Garcia v. CA, 319 Phil. 591 (2008) for more examples of mala in se crimes in special incapacitated for the performance on the activity or work in which he was
laws, July 4, 2008. habitually engaged for a period of more than thirty (30) days.
67
Art. 220 of the Revised Penal Code; see Ysidoro v. People, G.R. No. 192330, November 6. The penalty of prison mayor in its medium period (8 years and one day to 10
14, 2012, 685 SCRA 637. years) if in consequence of the hazing the victim shall have been ill or
incapacitated for the performance on the activity or work in which he was
68
Teves v. COMELEC, 604 Phil. 717, 729 (2009), citing Dela Torre v. COMELEC, 327 Phil. habitually engaged for a period of ten (10) days or more, or that the injury
1144, 1150-1151 (1996). sustained shall require medical assistance fqr the same period.
69
Senate TSP No. 47, supra note 63. 7. The penalty of prison mayor in its minimum period (6 years and one day to 8
years) if in consequence of the hazing the victim shall have been ill or
70
Villareal v. People, supra note 38, at 590. incapacitated for the performance on the activity or work in which he was
habitually engaged ii'om one (1) to nine (9) days, or that the injury sustained shall
71
Vedaa v. Valencia, 356 Phil. 317, 332 (1998). require medical assistance for the satne period.
72
Villareal v. People, supra note 38, at 591. 8. The penalty of prison correccional in its maximum period (4 years, 2 months and
one day to 6 years) if in consequence of the hazing the victim sustained physical
73
See People v. Beriarmente, 418 Phil. 229 (2001). injuries which do not prevent him from engaging in his habitual activity or work
nor require medical attendance.
74
See People v. Bayabas, G.R. No. 174786, February 18, 2015, where the Court
discussed that the term "organization" under R.A. No. 8049 is not limited to fraternities, 78
Art. 249, 263, 265 and 266 of the Revised Penal Code.
sororities, educational institutions, corporations, PNP and AFP.
79
75 Sec. 4 - xxx
Par. 8, Section 4, R.A. 8049.
76 The maximum penalty herein provided shall be imposed in any of the following
Par. 6, Sec. 4, R.A. 8049. instances:LawlibraryofCRAlaw
77
Par. 1, Sec. 4 of R.A. 8049 prescribe the following penalties:LawlibraryofCRAlaw (a) when the recruitment is accompanied hy force, violence, threat, intimidation or deceit
on the person of the recruit who refuses to join;
 98
(b) when the recruit, neophyte or applicant initially consents to join but upon learning that Senate TSP No. 47, supra note 63.
hazing will be committed on his person, is prevented from quitting;
99
Ladonga v. People, 414 Phil. 86, 101 (2005)
(c) when the recruit, neophyte or applicant having undergone hazing is prevented from
100
reporting the unlawful act to his parents or guardians, to the proper school authorities, or to Agullo v. Sandiganbayan, 414 Phil. 86, 101 (2001).
the police authorities, through force, violence, threat or intimidation,
101
Sec. 12, R.A. 9165, as amended.
(d) when the hazing is committed outside of the school or institution; or
102
Sec. 2, B.P. 22.
(e) when the victim is below twelve (12) years of age at the time of the hazing.
103
Sec. 5, P.D. 1612.
80
Par. 1 (8), Section 4, R.A. 8049.
104
TSN Vol. I, June 28, 2006, p. 23-31.
81
Par. 5, Sec. 4, R.A. 8049.
105
Id. at 89-90.
82
Id.
106
People v. Labagala, 640 Phil. 311 (2010).
83
Id.
107
People v. Capuno, 635 Phil. 226, 236 (2011).
84
Par. 3, Sec. 4, R.A. 8049.
108
People v. Javier, 659 Phil. 653, 657 (2008).
85
Par. 4, Sec. 4, R.A. 8049.
109
People v. Sace, 631 Phil. 335, 343 (2010).
86
Par. 3, Sec. 4, R.A. 8049.
110
Stephen Sweet, Understanding Fraternity Hazing, THE HAZING READER 2 (2004).
87
Par. 7, Sec. 4, R.A. 8049.
111
Supra note 43, at 14.
88
Senate TSP No. 62, supra note 63, at 13-15.
112
Sec. 4, Rule 133, Rules of Court.
89
Par. 2, Sec. 4, R.A. 8049
113
People v. Sevellino, 469 Phil. 209, 220 (2004)
90
See Ateneo De Manila University v. Capulong, G.R. No. 99327, May 27, 1993, 222
114
SCRA 644, 656, where it was stated that an administrative proceeding conducted to Rollo, pp. 81-84.
investigate students' participation in a hazing activity need not be clothed with the
115
attributes of a judicial proceeding. People v. Ayade, 624 Phil. 237, 245 (2010).
91 116
Id. at 49. Villareal v. People, supra note 38, at 559.
92
People v. Puig, 585 Phil. 555, 562 (2008), citing People v. Lab-eo, 424 Phil. 482, 495
(2002).
93
Elizabeth J. Allan & Mary Madden, Hazing in View: College Students at Risk, NATIONAL
STUDY OF STUDENT HAZING, p. 24 (2008).
94
Rivera v. People, G.R. No. 156577, December 03, 2014
95
People v. Caballero, 448 Phil. 514, 528-529 (2003).
96
People v. Marilla, G.R. No. 189833, February 5, 2014, 715 SCRA 452, 461.
97
People v. Collado, G.R. No. 185719, June 17, 2013, 698 SCRA 628, 650.